25 January 2022
Radar - February 2022 – 4 of 4 Insights
2022 is set to be a significant year for the UK's product safety and product liability regimes. In both areas, the EU has set out its proposals for significant reforms, largely focused on modernising the legislation, including by tackling difficult issues like the regulation of AI products and challenges posed by today's supply models like online marketplaces.
As the UK starts its second year as a third country outside of the EU, it will not be directly affected by the EU's proposed reforms. However, it is faced with a decision as to whether to introduce similar reforms or alternatively go in a different direction. This would result in greater divergence between the obligations and standards imposed on companies selling products on the UK and EU markets, as well as the consequences for such companies if something goes wrong.
We consider below some of the key issues to look out for in 2022.
Earlier this month, the EU Commission concluded its public consultation on its proposal to reform the Product Liability Directive 85/374/EEC (the PLD), which was enacted in 1985. The technological advances which have taken place since then have vastly altered the landscape in terms of the types of products being offered to consumers and the risks which such products pose.
The Commission is aiming to publish draft legislation in the third quarter of 2022 and while the precise contents of the reform package are yet to be determined, it could include the following:
These reforms would be seismic, and it is not yet clear whether the UK government is planning to follow suit by reforming the Consumer Protection Act 1987, which implemented the PLD in the UK. It is possible that the UK government will wait for the details of the draft EU legislation later this year before marking out its intentions. We are monitoring developments carefully.
The UK government has been more proactive in the field of product safety. The Office for Product Safety and Standards (OPSS), the UK government's product safety body, published a call for evidence in March 2021, seeking the opinions of stakeholders on a variety of issues including whether the UK's current product safety framework provides adequate protection from unsafe products. Another focus is whether the existing framework is versatile enough to safeguard consumers against the risk posed by new products, new technologies, and today's supply models (including in particular online marketplaces).
The OPSS's response to the Call for Evidence, published in November 2021, makes it clear that radical change to the UK's product safety regime is likely in the coming years.
The UK government is yet to introduce any legislative proposals, however some of the reforms being considered include:
The proposed reforms follow the European Commission's proposals for a new General Product Safety Regulation, to revise the existing system set out by the General Product Safety Directive (GPSD), which is a central pillar of the product safety regime in the EU and the UK . The EU's reforms also anticipate additional regulation of online marketplaces in order to improve consumer protection.
See our in depth look at the UK's proposed reforms here.
In August 2021, the UK government postponed the mandatory introduction of the UKCA marking to replace the EU's CE marking for the Great Britain (GB) market. The new deadline for qualifying product types to go through a UK conformity assessment and bear the UKCA marking before being placed on the GB market is 1 January 2023. This means that manufacturers who have yet to make this transition will need to use 2022 to make sure they are prepared for this deadline.
There are transitional rules in place to allow for the UKCA marking to be affixed to product packaging (i.e. using a temporary sticker) or appear on product documentation until 31 January 2024. From this date, subject to a few exceptions, the UKCA marking will need to be printed on the product itself.
Building on the COP 26 summit in Glasgow in late 2021, 2022 is likely to see a greater focus on environmental and sustainability issues and the emergence of more draft legislation to tackle the environmental cost of consumer products. The UK Government has set out that the promotion of energy saving products is central to its Net Zero Strategy.
The EU has also announced proposals aimed at encouraging consumers to use products for longer and make more sustainable choices. Measures put forward in the European Commission's Call for Evidence include potentially amending the Sale of Goods Act Directive to enshrine a right of repair at a fair price and elevating this right of repair above the right to a replacement where appropriate.
If you'd like to discuss any of the issues raised in this article in more detail, please reach out to a member of our Product Liability & Safety team.
by Multiple authors