9 April 2021
Download: Consumer protection and product liability – what's new? – 5 of 5 Insights
The end of the Brexit transition period has left the UK free to depart from EU-derived legislation. So far, changes have largely enabled the system to function in much the same way as before but outside the EU. The government is, however, now consulting on possible changes.
In substance, not much (yet). The UK continues to have a similar product safety regime following the end of the Brexit transition period, but it is now based on a different legislative footing. Prior to 1 January 2021, the product safety regime was derived from EU Regulations and Directives, (implemented by corresponding UK legislation) but, following the UK's withdrawal from the EU, it now operates as a matter of UK law only.
To ensure this new legislative basis is workable, the UK has implemented several statutory instruments that amend the existing pre-Brexit UK product safety legislation. The most substantial of these is the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019/696 (Product Safety SI).
The Product Safety SI (which came into effect from the end of the transition period) amended over 30 pieces of product safety and metrology legislation including the General Product Safety Regulation 2005 (GPSR), as well as laws governing products such as toys, electrical products, radio equipment and machinery.
These changes aim to ensure that any deficiencies in the existing legislation are amended, including, for example, the removal of references to EU bodies, institutions and processes. These references have been replaced by an entirely domestic system, although much of the substance of the legislation (ie the specific safety requirements) has remained the same.
These amendments have important implications for product manufacturers, importers and distributors in the UK and the EU post Brexit. In particular, the definition of "producers" under the GPSR has now changed and a new product marking system (UKCA mark) has been introduced to replace the EU-derived CE mark.
Under the amended GPSR, a "producer" is now the manufacturer of a product who is established in the UK (or a person established in the UK that places a product from outside the UK on the market) and no longer covers manufacturers or persons based in any Member State of the EU. This means that persons established in the UK who were previously "importers" of products (if the manufacturer was based in another EU Member State, for example), are now "producers" in the UK.
This newly categorised producer now faces more onerous obligations, including to ensure that labels are correct (its UK name and address may need to be included on the product, where necessary) and is also responsible for ensuring compliance with other "producer" obligations, such as providing customers with information to allow consumers to assess risks with the product.
A similar change is applicable to persons who were previously EU "distributors" prior to the UK's withdrawal from the EU. They may become "importers" required to comply with more onerous importer obligations under much of the product-specific legislation.
The UKCA mark is the new product mark which confirms that the marked product meets certain health, safety and environmental regulations and standards (as set out in product-specific legislation). It replaces the EU's CE marking regime for certain goods (toys, electrical products, machinery etc.) placed on the market in Great Britain (England, Wales and Scotland). A separate regime exists for Northern Ireland, which will continue to require CE marking or a new UK(NI) mark.
The technical requirements (or "essential requirements") and the conformity assessment processes and standards used to demonstrate conformity, have remained substantively the same. This is not to say that such standards will not change if/when the UK government chooses to deviate from the existing EU rules (ie to introduce "UK Standards" as it has said it will), but for now, the substantive requirements continue as before.
There is a transitional period for the implementation of the UKCA marking regime. Products that meet current EU requirements (including those that have been lawfully CE marked and/or tested by an EU-recognised conformity assessment body) may continue to be placed on the market in Great Britain until 31 December 2021.
The regulatory and enforcement powers of the Office for Product Safety and Standards (OPSS), the national regulator of consumer products in the UK (alongside Trading Standards), are not directly impacted as a result of Brexit. That said, while OPSS powers remain the same for the UK, the OPSS no longer has the same powers to investigate/prosecute infringements of product safety law within EU Member States.
The UK government has said it is committed to "maintaining a comprehensive framework of consumer rights alongside an effective enforcement regime" and the OPSS will be crucial in achieving this. It will continue to adopt a risk-based and targeted approach to enforcement and a number of measures have already been adopted to assist with this. In its 2019/20 Delivery Report, the OPSS stated it remains "committed to ensuring that the level of protection afforded to consumers against unsafe or non-compliant goods is not diminished now that the UK has left the European Union" and "will continue to seek to ensure that products are safe for consumers and compliant with UK rules".
The OPSS has identified certain product categories where ongoing monitoring is required to ensure products remain safe under the existing regime, including CBD products, home energy storage systems and virtual reality systems.
In terms of enforcement of product safety rules, we will likely continue to see an aggressive approach by the OPSS, particularly in respect of consumer goods (white goods in particular, following several product safety recalls) and online consumer marketplaces.
The UK government will want to uphold its strong compliance reputation to maintain confidence in UK products, and it is already looking at areas that require strengthening.
On 11 March 2021, the government announced plans to "review and strengthen the UK's product safety laws and ensure they are fit for the 21st Century". In a Call for Evidence, the OPSS has asked for views from manufacturers, distributors, consumers and the wider public on the long-term approach to product safety and how to best ensure it is fit for the future.
It is hoped this will enable the government to ensure the product safety regime reflects recent innovations, new consumer products and cutting-edge technologies (such as AI and 3D printing). Subject to the evidence it receives, changes are expected. This is probably not surprising, given that much of the existing regime has not been updated for many years, even in the face of rampant technological growth. The Call for Evidence will close on Thursday 3 June 2021, following which the government will publish a summary of responses and evidence within 12 weeks. Manufacturers (and other parties in the product supply chain, including online marketplaces) should monitor this review and resulting actions carefully.
To discuss the issues raised in this article in more detail, please reach out to a member of our Product Liability & Safety team. If you face a product safety incident we can advise on all aspects including regulatory notifications, recalls, reputation management and follow on claims.