The OPSS (Office for Product Safety and Standards - the UK’s product safety regulator) proposed an overhaul of the UK’s current product safety regime under the previous Government with the Product Safety Review (PSR) consultation in summer 2023. It described the current rules as “fast becoming outdated” and unable to cater adequately for modern supply chains (see our further analysis here).
Although further proposals did not emerge before the General Election, it has been announced that a new Product Regulation and Metrology Bill (the Bill) will form part of the Government’s new legislative programme. Change is now therefore firmly on the horizon for product safety regulation in the UK. However, the substance of exactly what changes the Government has planned will only be fleshed out in future secondary legislation.
What does the Bill do?
The Bill is short (14 clauses) and is accompanied by some more detailed Explanatory Notes. However, the Bill’s brevity belies the significant enabling powers which it intends to confer. Essentially, the Bill is designed to arm the Secretary of State with wide powers to enact future secondary legislation covering the span of the OPSS’s remit: product regulation, product safety and metrology. It grants powers to introduce and enforce new product regulations and requirements, as well as to amend or repeal certain existing legislation in so doing. Notably it does not include specific requirements to consult before exercising such powers.
In terms of the scope of products, the framework would cover most consumer products, including toys, cosmetics and machinery (the same as the OPSS’s current remit). A schedule sets out certain excluded products, including medicines, medical devices and food.
Three core areas of focus emerge from the Bill and supporting materials:
i). Adapting to new technology
The Government wants the UK regime to be able to “adapt to new technologies” such as AI and to deliver enhanced consumer protection in light of this and other advances in technology.
However, despite the references to AI in the Explanatory Notes and in the King’s Speech this year, the term does not actually appear in the Bill itself, and “product” is defined in the Bill in the more traditional sense as a “tangible item” that results from a method of production (although the Explanatory Notes acknowledge that a product’s components may, of course be intangible, such as software).
ii). Modern supply chains
The Government seeks new rules to place “clear and modernised” rules for “increasingly complex supply chains”. The Bill envisages that future legislation made under it will place responsibilities on online marketplaces, in particular. For example:
- Clause 2 states that the future regulations that the Bill enables may include product requirements in relation to “the marketing of products through an online marketplace”.
- It includes those who “control access to” or “the contents of” an online marketplace (and their intermediaries and authorised representatives) on the list of those “on whom product regulations may impose product requirements”.
- There is also specific provision in clause 10(2) which would permit the SoS to amend by regulations the definition of “online marketplace”.
However, there is no clarity as to what these future obligations might involve. We will need to wait for draft regulations to be published in future to see.
iii). EU divergence
The Government recognises - post Brexit - the divergence between GB and EU law, as well as the divergence within the internal UK market between Great Britain and Northern Ireland. The Government considers that the UK does not currently have sufficient powers to respond to EU developments - such as the EU’s new General Product Safety Regulation - which will come into force at the end of this year across EU Member States and in Northern Ireland. The Bill is therefore intended to allow domestic law to be updated to reflect new or updated EU product requirements. Under clause 2(7), future product regulations can provide that a product requirement is to be treated as fulfilled if it meets specified provisions in relevant EU law.
This is a natural follow-on to the recent practice of UK regulators in extending provision for mutual recognition of EU standards across sectors, and we consider that industry would broadly welcome the certainty and stability associated with closer alignment with European standards. However, how far the Government actually intends to exercise these powers towards alignment with the EU remains unclear, and may well depend on the outcome of the Government’s reported negotiations with the EU on a further, post-Brexit “reset” in relations with the UK. All the background briefing notes to the King’s Speech say is that harmonisation is only intended insofar as “it is in our interests to do so” and the legislation will ensure that the UK can also end recognition of EU product regulations “where it is in the interests of UK businesses and consumers to do so”.
What’s next?
The Bill still has a long way to go. It was introduced to the House of Lords on 4th September 2024 for its first reading. The second reading will take place on 8th October – which will be the first meaningful chance for the House of Lords to debate it. This will be followed by Committee and Report stages before the process is then essentially repeated in the House of Commons. The Bill is intended to apply to the whole of the UK, including Northern Ireland, and Legislative Consent Motions are to be sought from devolved Nations. The earliest likely point at which the Bill could be expected to receive Royal Assent is spring next year.
Once the Bill is in force, the Government will have wide-ranging powers to pass secondary regulations in the product safety space. How and when it will use those powers, however, remains uncertain.
It does not seem likely that we should expect changes to the UK civil product liability rules to flow from the Bill. The Bill (or related commentary) did not include any reference to an intention to update UK civil product liability rules (compared with the OPSS’s PSR which did include this in the consultation - see our further analysis here). Further, the references in the Bill to the parts of the Consumer Protection Act 1987 which are vulnerable to repeal per clause 9 did not include Part 1 (which concerns product liability). We may reasonably conclude that this is therefore not a current legislative priority.
