The OPSS launch consultation on modernising product safety laws

United Kingdom

The Office for Product Safety and Standards (OPSS) have launched a Call for Evidence seeking views from manufacturers, distributors, consumers and the wider public on the long-term approach to product safety. This is in light of the UK Government exploring changes to product safety laws to ensure that they best reflect the realities of the modern-day, such as the rise of e-commerce and emerging novel technologies, and is the first step towards potential modernisation of the product safety laws.

Current regulatory framework

The current framework surrounding UK product safety laws is extensive and complex, with over 20 sets of regulations. It is primarily derived from the EU, but also includes some older, national legislation made under the Consumer Protection Act 1987. Within this framework, there are also significant variations and adaptions for different products. Additionally, products that do not have specific legislation are regulated under the General Product Safety Regulations 2005, which provides a baseline of safety placing requirements on producers to ensure that their products are safe, and on distributers to ensure that they act with due care to ensure that consumer products are safe before placing them on the market.

The Call for Evidence

In their UK Product Safety Review Call for Evidence, which was published on 11 March 2021, OPSS are seeking views on the longer-term approach to product safety and how to best ensure that the framework is fit for the future. The OPSS aim to understand perceptions and experiences of the current system, explore how the growth of e-commerce and technological advances are making product safety responsibility more complex, and ensure that legal regulations are kept up to date and in line with modern advances and what this will mean for consumer safety.

It focuses on gathering evidence relating to five specific areas, containing multiple questions across these topics which the OPSS are asking for direct responses to. The evidence gathered will then help inform the next steps that need to be undertaken, if any, to modernise product safety laws. The Call for Evidence focuses on the following five areas:

Product design, manufacture and placing on the market

The current framework on product safety has been designed around traditional, physical products. The rapid evolution of technology and the growth of internet-connected (‘smart’) devices has resulted in the boundary between product and service, and between an individual product and a connected one, becoming increasingly harder to distinguish. Additionally, modern manufacturing techniques, such as at-home 3D printing, opens the door for new possibilities in areas such as product repair and customisation. These developments have meant that greater clarity on legal responsibilities may be needed for products that incorporate software and new manufacturing techniques.

New models of supply

The rapid rise of e-commerce, further accelerated by the Covid-19 crisis, has both revolutionised and disrupted the way products are purchased, and it is clear that online shopping will continue to be increasingly popular way for consumers to buy. Much of the current regulatory framework was designed before the days of internet shopping and, consequently, certain aspects of the regulations will require greater clarity to fully align with the current retail landscape.

The new models of selling and distributing products, which often work in tandem with additional services such as payment services or fulfilment services, enable products to be sold more easily, cheaply, and often on a cross-jurisdictional basis. This brings new challenges where lines may become blurred between different actors in the supply chain, and where it may be harder to identify the manufacturer, importer and distributor. Traceability aspects in supply chains have been recognised as an important tool for products such as food and medical devices, in order to guarantee safety and quality. It may be likely that these traceability concepts will be extended to cover products more generally.

New products and product lifecycles

The products that are being sold are themselves rapidly changing. ‘Smart’ products, which may require software updates, may result in it being more difficult to determine where producer responsibility lies.  Through software updates and AI techniques like machine learning, these products and their safety implications can continually change over their lifetime. Product lifecycles are also changing, with the drive towards a more circular economy. Second-hand goods may generate issues such as how to ensure the safety of a product many years, or even decades, after they were first sold, and how to engage new owners in any corrective or recall action.

Enforcement considerations

Today, a significant number of products are sold online through a variety of supply models. The government wish to ensure that the legal framework contains the appropriate and relevant tools available to regulators, and that their duties, powers, and obligations are up to date and consistent and appropriate for working with the different business models and complex supply chains.

A diverse and inclusive product safety network

The OPSS also wish to explore how product safety can better reflect the needs of everyone in society. The OPSS wish for the framework to be more diverse and inclusive, ensuring that the most vulnerable consumers and under-represented groups are protected in the regulations. For example, where products have only been designed or tested using only the average metrics for one group of society, e.g. a single ethnic group, age group or gender, then safety risks for the groups that have not been considered may be increased.

Comment

It is unclear just how the government will use the evidence gathered to progress their aims of modernising product safety laws. While the responses received will inform the government as to current market practice and opinion, it is not yet decided whether modernisation will come through legislative changes and, if so, how radical these will be. The government intend to publish a summary of responses and evidence paper within 12 weeks of the close of the Call for Evidence, and so it is likely that any reform that is proposed will not be until the end of 2021, possibly the beginning of 2022.

The Call for Evidence can be found here and is open until 3 June 2021.

The authors wish to acknowledge the assistance of Isabel Sgambellone (Trainee, CMS Sheffield) in preparing this article.