28 July 2021
The European Commission has published its much-anticipated Proposal for an amended General Product Safety Directive (GPSD), following a public consultation held between June 2020 and October 2020.
The GPSD's objective is to protect consumer health and safety by ensuring that unsafe products are not placed onto the market. If products on the market are deemed unsafe for consumers, the GPSD requires businesses to take corrective action, including recalling products and notifying market surveillance authorities, if necessary.
The Proposal features (the Regulation) with several changes that aim to address key gaps in the current product safety regime – which is almost 20 years old – particularly those arising from the growth of online marketplaces and new consumer technologies. We examine some of the key elements of the Proposal below.
In the Proposal, the European Commission admits that the lack of explicit provisions in the GPSD to address the "specificities of online selling" has negatively affected the safety of EU consumers. Chapter IV of the proposed Regulation is dedicated to online marketplaces, with key measures including:
One of the key questions that has arisen for manufacturers and legal practitioners alike is how the GPSD applies to new technologies like software, AI-powered products and Internet of Things devices. The proposed Regulation seeks to provide greater legal certainty for business and protection for consumers in this regard. Some of the main proposals include:
The proposed Regulation also attempts to increase the effectiveness and consistency of market surveillance and product recalls in EU Member States through the following measures:
A timeline for any implementation of the Proposal is uncertain, as it will still need to pass through the legislative process. This is not a certainty given the legislative setbacks previous proposals of this type have experienced before. Stakeholders can to the European Commission until 31 August 2021.
Following Brexit, the UK is not obliged to implement any of these proposals should they be finalised. However, the UK government is currently carrying out its own review of the UK product safety regime with responses to the public consultation expected to be published shortly.
It remains to be seen to what extent the UK's proposals will mirror the proposals of the EU. We suspect the UK will attempt to implement measures that also focus on online marketplaces, as well as expanding the definition of "product" to provide certainty for UK businesses and consumers. That said, business that manufacturer and sell products into Europe will be directly affected by the proposed changes and should continue to monitor developments.
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