The UK government’s Office for Product Safety and Standards (OPSS) has recently published a new incident management plan for product safety incidents (the Plan, see link).
The Plan sets out how OPSS will identify and respond to incidents of various scales and levels of seriousness. This includes an explanation of when OPSS will assume primary control of incidents from local Trading Standards and when its role will remain more limited; for instance, providing any necessary scientific and/or technical input in the context of a local authority-led response. It also details pre-defined management structures and responsibilities to be adopted for different types of incidents where OPSS takes on a co-ordinating role.
What types of incident are covered?
The Plan covers incidents involving those types of products for which the Department for Business, Energy and Industrial Strategy (BEIS) is responsible. These include many consumer products, but not food, motor vehicles, medicines and medical devices, workplace equipment and construction products. These other products are all managed by other departments/agencies and are, in some cases, subject to their own regulatory regime.
What will trigger an OPSS response to a product safety incident?
OPSS expects to receive notification of potential incidents from a variety of stakeholders, including other regulators, businesses, trade bodies and directly from consumers. The Plan also emphasises the continued importance of local Trading Standards as a source of information about potential incidents, given that they are likely to remain the first point of call for industry reporting and consumer complaints (the General Product Safety Regulations require producers and distributors to notify Trading Standards about unsafe products).
Notifications from these stakeholders will be routed to a specialist Incident Management Team established within OPSS.
How will OPSS classify a product safety incident?
The Plan splits product safety incidents into “routine” and “non-routine” categories, with non-routine incidents defined as those for which “based on the information available, there is an actual or potential threat to the safety of persons in the UK […] which cannot be dealt with using everyday resources and procedures.” The remainder of incidents will be classified as routine.
Non-routine incidents are further sub-divided into the following categories:
- serious – “an incident which cannot be dealt with via business-as-usual resources and procedures, and requires decision making and resource allocation to be made at a higher level”;
- severe – “requires strategic level input and support, potentially through significant cross-government cooperation and coordination”; and
- major – “require[s] a central government coordinated response” and will likely require Cabinet Office Briefing Room (COBR) committee intervention.
The OPSS Incident Management Team will categorise each incident based upon the initial notification and any other information available. In doing so, it will evaluate the potential severity, scale and impact by considering factors including:
- the type and severity of injury that could be caused by the product;
- the number of consumers that could be affected;
- the usage of the product (e.g. frequency of use and the different foreseeable/unforeseeable uses);
- the potential impact on vulnerable consumer groups;
- any previous incidents involving the product;
- the complexity of action needed to reduce risk;
- consumer concerns and perceptions; and
- political and media interest.
It is expected that the majority of incidents will be deemed to be routine, with progressively smaller numbers falling within the serious, severe and major incident categories.
How will OPSS respond to a product safety incident?
OPSS will not typically assume the primary co-ordination role for routine incidents, although it may provide technical support in such cases. Those incidents will normally continue to be managed by Trading Standards. However, OPSS may still lead the response where an incident has particularly novel, contentious or nationally significant features.
The Plan also sets out different operating procedures for each category of non-routine incident. While there is a presumption that OPSS will assume a greater role in respect of such incidents, it will still contemplate whether it or the relevant local authority is better placed to take charge, based on e.g. the capacity and capabilities of the relevant Trading Standards team and the scale of the incident.
Where OPSS assumes the lead role, the type of activities that it will perform include:
- intelligence gathering and liaising with the relevant local authorities and businesses to understand the extent of the problem and what actions might be required;
- reviewing technical documentation relating to the product and hazard;
- reviewing product risk assessments conducted by the business(es);
- conducting testing of the product;
- directing a business to take specific corrective action and overseeing this;
- issuing advice to consumers on required actions, or supporting businesses to do so; and
- taking enforcement action.
Comment
While the Plan does not change industry obligations to report product safety concerns, it may add greater consistency to how such incidents are handled.
If the Plan functions as envisaged, it should bring greater regulatory expertise and governance to the most significant and challenging product safety incidents. For instance, the early provision of scientific and technical expertise might help to ensure a faster and more proportionate response to certain incidents, which could otherwise be subject to a delayed or hesitant response from local authorities, who lack comparable crisis management experience and may not be able to offer the same technical expertise. This is likely to be beneficial to many industry stakeholders, providing greater clarity and potentially reducing unnecessary or inappropriate interventions.
Such an analysis assumes a properly implemented and well-resourced approach. To achieve this, as well as prioritising notifications, OPSS will need to be selective as to the types of incidents in which it chooses to intervene.
OPSS has indicated that the Plan remains a working document and has invited comments. These can be made to OPSS.enquiries@beis.gov.uk.
