The new government looks set to make reforms to the rules governing the product safety regulatory regime in the UK.
What's the issue?
The Product Regulation and Metrology Bill was announced as the Product Safety and Metrology Bill in the King's Speech of 17 July 2024. The Bill was positioned as legislation which would update product safety law including to help enable the UK to keep pace with technological advances such as AI while also maintaining an equitable landscape. Among other things, the Bill was intended to clarify the role of online marketplaces in product safety, particularly where they are used to place non-UK products on the UK market.
What's the development?
To very little fanfare, the Product Regulation and Metrology Bill was published in the House of Lords on 4 September 2024. The Bill is a framework piece of legislation which provides for the Secretary of State (SoS) to make secondary legislation on the marketing or use of products in the UK to reduce or mitigate risk, ensure they operate efficiently or effectively, and ensure they weigh and measure accurately (the Metrology elements are outside the scope of this article which focuses on product regulation).
Risk is defined as when the intended use of a product under reasonably foreseen conditions could endanger health and safety, property or cause or be susceptible to electromagnetic disturbance.
Notably, the Bill as published defines a "product" as a tangible item that results from a method of production and does not currently broaden the scope of product safety legislation to cover intangibles such as software. Certain products (including food, plant and animal products, aircraft military equipment and medicines and medical devices) are excluded in Schedule I.
The substantive content of the legislation will only come when the SoS exercises the powers conferred to create new laws on product requirements, use, marking, and marketing and around technical standards. This includes placing obligations on manufacturers, marketers, importers and online marketplaces.
There is also scope to introduce an enhanced enforcement regime and information sharing practices.
Crucially, the SoS is empowered to make regulations to correspond to relevant EU legislation (broadly EU law which harmonises conditions for the marketing or use of products in the EU) to reduce or mitigate the environmental impact of products.
What does this mean for you?
While the King's Speech suggested we might get more comprehensive provisions in primary legislation, this Bill rather paves the way for what is or may be to come down the line. The background notes to the Speech probably say as much about the government's priorities in terms of what it plans to focus on than the Bill itself which, for example, does not mention AI.
The background notes highlighted:
- Responding to new product risks and opportunities.
- Identifying new and emerging business models and ensuring responsibilities of those involved in their supply including of online marketplaces.
- Ensuring the law can be updated to recognise new or updated EU product regulations.
The focus on enabling a UK-wide approach where appropriate is important as the Windsor Framework sets out that EU changes to product regulation apply in Northern Ireland but not in the rest of the UK.
Alignment with the EU's General Product Safety Regulation (EU) 2023/988 is said to be a priority for secondary legislation and the ability to align with EU law in certain respects will likely be welcomed by cross-border businesses to preserve regulatory stability and maintain single supply chains across the UK and EU.
Timelines for these changes are unclear and the developments should be kept closely under review. Although the Bill is likely to pass relatively quickly, it remains to be seen what secondary legislation will emerge under the powers given to the SoS and when these are likely to apply.
The Bill may repeal Parts 2, 4 and 5 of the Consumer Protection Act 1987 (CPA 1987) which relate to consumer safety, enforcement, and miscellaneous provisions, respectively. As such, the provisions of Part 1 of the CPA 1987 on product liability appear to be unaffected by the Bill and we will wait to see whether it will also update the UK's strict liability regime in due course.
Our specialist product liability and safety team is monitoring developments in relation to reform in this area so keep an eye out for further updates to learn more.
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