HMG proposes fundamental reform of UK consumer product safety regulatory framework

In a consultation published earlier this month, HMG has proposed a “fundamental reform” of the UK’s consumer product safety regulatory framework, following its 2021 Call for Evidence. The Government considers that the current patchwork of regulations is an “unnecessarily complicated and disjointed body of law” which is “fast becoming outdated” in view of significant changes in supply chains, e-Commerce and technological advances in products themselves.

The consultation focusses on changes to the regulation of consumer products which are currently regulated by the General Product Safety Regulations 2005 (GPSR), as well as certain product specific legislation. Out of scope are products which are regulated by sector-specific safety regulation (e.g. food, chemicals, pharmaceuticals, medical devices, vehicles, etc.).

Although the detail is light in these proposals, many of the changes that the UK is considering echo updates which the EU has recently made to its own general product safety regime (see here and here for our further analysis).

The consultation document also contains a proposal to consider reform of the UK’s civil rules relating to product liability, which we will consider in a follow-up post.

Bringing products to market 

The consultation document states that HMG would like to move away from a prescriptive set of detailed, product-specific legislation towards a “cross cutting, hazard-based” system. This system would categorise products according to the hazards or risks which they present, for example according to the likely impact of harm caused, expected user groups, or the likelihood of harm. Higher risk products would be subject to more rigorous requirements and the Government is considering “more explicitly” linking marking and conformity assessment requirements according to a product’s risk level.

The Government proposes to move quickly to introduce voluntary e-labelling as an alternative to certain information having to accompany or be indelibly marked on the physical product. This would be limited, however, to UKCA conformity markings or manufacturer details, and to products with integrated screens or designed to be used with a screen, and certain information will still required to be physical/indelible (e.g. safety information such as choking warnings). The Government indicates it is keen to consider possibilities to further expand e-labelling to a wider range of products and information categories.

Online supply chains

The Government considers that the current framework requires updating to cater for online supply chains. It highlights that the growth of new actors and activities in the supply chain does not match up easily with key definitions in current legislation of manufacturer, importer and distributor. Similar concerns motivated similar changes to the EU regime (see here).

The Government notes in particular a perception among respondents to the Call for Evidence of an increased prevalence of non-compliance by third party sellers on online marketplaces, including enforcement issues related to a lack of UK-based economic operators. HMG does not consider that requiring products to have an economic operator based in the UK before they can be sold is the right approach to tackle this issue. It notes that online marketplaces may be classified as importers or distributors depending on the facts and sets out proposals to legislate for specific duties which would apply to online marketplaces. In particular, the Government proposes:

• To require cooperation with enforcement authorities;
• To strengthen consumer-facing information on online product listings (e.g. warnings, key safety information, a prominent indication where a product is listed by a third party seller);
• To legislate for so-called “due care” requirements in relation to unsafe product listings on online marketplaces, e.g. to monitor Government recall and alert notifications, and extending to requiring their removal, which would be enforced by a national enforcement authority with powers ultimately to restrict or block access to relevant webpages; and
• A potential additional duty to have a compliance function established in the UK.

The UK will also consider extending duties to others within the supply chain, such as fulfilment service providers, as the EU has done.

Compliance and enforcement 

The consultation includes proposals to enhance enforcement activity. The intention is for the Office for Product Safety and Standards (OPSS) “to lead and coordinate enforcement activity”, although the overall structure of the current system, with enforcement primarily led by Trading Standards and local authorities, would remain. Key proposals include:

• All notifications of recalls/serious safety incidents would be sent to OPSS rather than local authorities – with the OPSS being the single point of contact for product safety recalls;
• HMG will consider making it an offence to fail to comply with such reporting obligations;
• Consolidating and aligning enforcement legislation to create a single set of notices and offences covering all products within the framework; and
• Introducing significant new enforcement powers including providing local authorities with the power to directly sanction certain types of non-compliance as an alternative to court prosecution (e.g. through the ability to directly impose monetary penalties, improvement notices and enforcement undertakings).

Next steps

• The consultation is open until 24 October 2023.
• HMG anticipates both new primary and secondary legislation to bring together retained EU law and domestic legislation into a “single coherent framework”.  It plans to review the role of guidance and voluntary technical standards in improving “agility” and “flexibility” (and is considering “shifting the balance” towards standards/guidance to achieve this).
• Although some reforms are anticipated soon (e.g. e-labelling), the Government acknowledges that reforms need to be introduced gradually and cannot happen “overnight”.

Comment

The changes contemplated are potentially wide-ranging but little detail is given in the consultation document of how they might take shape. This may suggest that the Government’s thinking on these issues is at a relatively early stage.

Some of the proposals suggest that the UK is playing catch-up with reforms already introduced by the EU to its own general product safety regime (from which the GPSR originally derived), for example, by adjusting the regime to fit with modern online supply chains and providing for enhanced enforcement.

Slotted within the consultation document, HMG also announces it is considering reforming the civil product liability regime currently set out in the Consumer Protection Act 1987, citing questions raised as to its fitness for purpose. We will comment on that separately.