Worldwide: Productwise 3-2-1 (29 October 2021)

16th edition – October 2021

Here's the next edition of our monthly bite-sized digest, Productwise 3-2-1  where each month, we bring to the top of your inbox (and your agenda):

• 3 key takeaways from the past month
• 2 hotbed issues you should keep your eye on
• 1 practice tip to keep you at the top of your game

This month it's all about the European Commission's proposal to introduce a common charger in the EU, new UK guidance on green claims, plans to revise the EU Toy Safety Directive, the CPSC's new chair and operating plan and a resource to add to your digital library – Lexology's GTDT Product Liability 2021 series.

3 top things from the month just gone

• EU Common Charger proposal published.  The European Commission published its proposal to introduce a common charger in the EU via draft legislation to amend the Radio Equipment Directive. A large range of consumer devices that use wired charging are in scope including mobile phones, tablets, digital cameras, headphones, headsets, handheld videogame consoles and portable speakers. Under the proposal, these devices will be required to have a harmonised USB-C charging port. The proposed legislation will also impact devices that already contain the harmonised charging port – with requirements for labelling, unbundling the sale of devices and chargers, as well as the harmonisation of fast charging technology also proposed. Feedback on the draft legislation closes 18 November 2021. The Commission also announced plans to introduce interoperability requirements for external power supplies under a revision of the ecodesign regulations to be launched later this year. To find out more, see the European Commission's webpage for the common charger initiative here.
• New UK guidance on misleading green claims published.  The UK's Competition and Markets Authority ("CMA") published its final guidance on misleading green claims. The Green Claims Code ("the Code") aims to help businesses comply with their existing obligations under consumer protection law when making environmental claims in the UK. The CMA has announced that it will conduct a formal review of misleading green claims by businesses both online and offline, starting at the beginning of 2022. Businesses are well advised to use the time between now and the end of the year to ensure that their green claims comply with the Code. To find out more read our blog here.
• The CPSC has a new Chair. Alex Hoehn-Saric was officially confirmed by the US Senate to both be the next Permanent Chair of the CPSC, as well as a Commissioner, for a term that will expire on 27 October 2027. Chair Hoehn-Saric's Commission seat fills the vacancy of former Chairman Elliot Kaye, whose term ended in October 2020. Kaye just recently left the agency at the end of August, which was close to the end of a 1-year "holdover" period allowed by statute. Hoehn-Saric was sworn in by Congressman Frank Pallone, the Chairman of the House Energy and Commerce Committee, on October 12th. Hoehn-Saric has named Jana Fong-Swamidoss as his Chief of Staff. Ms. Fong-Swamidoss previously served as Chairman Kaye's Chief of Staff. With the confirmation of a new Chair, Commissioner Bob Adler has now officially closed the chapter on his second tour as Acting Chairman and will shift back to his familiar role as Commissioner until the earlier of his decision to leave the agency or the confirmation of Richard Trumka, Jr. Trumka Jr.'s nomination has cleared the Senate Committee on Commerce, Science, and Transportation but there have been no indications regarding when his nomination may receive a full Senate vote.

2 things to look out for   

• Revision of the EU Toy Safety Directive.  The European Commission released details of an initiative to revise the Toy Safety Directive in an Inception Impact Assessment published on 5 October 2021.  The proposal is to replace the Toy Safety Directive with a Toy Safety Regulation. The aim as stated on the Commission's webpage for the initiative is to "protect children better against risks in toys, particularly from chemicals. It builds on work such as the chemicals strategy for sustainability, and on an evaluation of the current toy safety rules completed in 2020. At the same time, it aims to strengthen the Single Market for toys". In addition to addressing risks from chemicals and hazardous substances in toys, other policy options being considered include addressing risks in internet-connected and AI-enabled toys, setting requirements for labelling the chemical composition of toys (including exploring the possibility of digital labelling) and the possible introduction of a digital product passport containing compliance documentation. Feedback on the Inception Impact Assessment is open until 2 November 2021. A public consultation is scheduled for later this year 2021. Further information can be found on the Commission's webpage for the initiative here.

• The CPSC has an operating plan. Each year the CPSC must vote to approve its Operating Plan for the upcoming fiscal year, which provides the agency with its priorities and the ways in which it will utilize its congressionally-allocated budget for the year. While there are some internal politics at play, and some trading among the Commissioners for which issues will be the "priority" ones for the coming year, this year's Operating Plan vote was as unique as they come. After the vote, the public learned through a statement issued by then-Acting Chairman Adler that Commissioners Baiocco and Feldman had submitted over 50 amendments to the Operating Plan, and subsequently approved it by a 2-1 margin. Adler decried this as "Government by Ambush" and said no one was provided notice of the amendments. Adler requested a review by the Acting General Counsel, which resulted in nullification of the vote for failure to follow the CPSC's Decision Making Procedures. Ultimately, Baiocco and Feldman used their 2-1 majority (prior to Hoehn-Saric's confirmation) to override the general counsel's nullification, and the Operating Plan is now final and effective. Notwithstanding the interesting nature in which it was approved, the Operating Plan with amendments anticipates an increase in funding and therefore provides agency staff with more resources for achieving robust enforcement and addressing product safety issues through rulemaking. For example, the agency will add an additional 27 port inspectors, including an additional 8 Full Time Employees dedicated to monitoring eCommerce/internet surveillance and is allocating $2 million to develop and implement a web-crawler application to enhance detection of violative products on the internet.

1  top practice tip

• Lexology GTDT Product Liability 2021 – a resource to add to your digital library.  The Cooley Products team recently authored the US, EU and England & Wales chapters for Lexology's Getting the Deal Through (GTDT) Product Liability 2021 series. The publication is a quick reference guide providing insights into the legal framework, civil litigation system, evidentiary issues, recoverable damages, limitations and defences as well as recent trends and hot topics to keep on your radar. You can download the chapters via these links Product Liability US, Product Liability EU and Product Liability England & Wales.