Last week, the European Commission published its proposals for a revision of the General Product Safety Directive, paving way for a new dawn in the form of the General Product Safety Regulation. This is a major development that has been more than a decade in the making, and the potential ramifications for the products world are significant and wide-ranging. These proposals would take the regulation of consumer product safety to new levels not only in Europe, but around the world. Here's our early take on what has been proposed and the significance for those manufacturing or supplying products for the European Union.
Despite being a key part of the EU's product safety legislative framework, the current General Product Safety Directive is now 20 years old and has been considered outdated for a long time now. Reform has been under consideration for many years – many will recall a failed attempt to introduce a General Product Safety Regulation in 2013, which collapsed because of a (largely irrelevant) disagreement about mandatory 'country of origin' marking. However, after a long period of consideration and debate within the EU, the Commission has now set out its fresh proposal for a General Product Safety Regulation – one that builds on the last 8 years of debate, discussion and consultation, and which takes the regulation of product safety way beyond what could have been envisaged back in 2013.
Delivered under the New Consumer Agenda, the Commission has explained that in particular the proposal helps address the risks presented by the rapid speed of digitization, which we have seen accelerate during the pandemic due to the increased adoption of technology such as online shopping. It also focusses on more stringent measures to protect consumers from dangerous and deceptive products. The proposals will bring the regulation of general consumer product safety in-line with the provisions of the New Legislative Framework (primarily Decision No. 768/2008) and the newly-introduced Market Surveillance Regulation (EU) 2019/1020 – both of which cover the range of product sectors governed by "harmonised" measures – typically those products requiring the CE mark. But these latest proposals go much further, and in many important respects will impose additional requirements for CE marked products as well.
When launching the proposal, the Commission cited their findings that the detriment suffered by EU consumers and society due to accidents caused by unsafe products was estimated at 11.5 billion per year, and EU consumers were wasting 19.3 billion per year buying unsafe products. From our perspective, the message here is clear, product safety has firmly been elevated to a high priority on the Commission's agenda, and should this legislation pass into force, what are commonly referred to as "GPSD Products" will no longer be subject to a lighter touch regime than their CE marked siblings – times are changing.
The key proposals
The text of the proposal is more than 80 pages long, but here are some of the more eye-catching provisions:
- Online marketplaces receive their own dedicated chapter with obligations specifically focussed on their place in the product supply chain. Proposed obligations include online marketplaces establishing a single contact point allowing for direct communication with Member States' market surveillance authorities and registering a single contact point with the Safety Gate portal. The proposed obligations will build upon and be consistent with the proposed Digital Services Act.
- There are various specific provisions relating to online sales that will be of interest, including the need to publish safety warnings at the time of online advertising, and the fact that use of an EU language in online advertising will constitute targeting EU consumers. This latter provision meaning that more distributors of products may find themselves inadvertently within scope of the new draft regulation than before.
- Manufacturers will have to draw up technical documentation in relation to all consumer products – a concept far better understood in relation to CE marked products, but not previously common for GPSD products.
- It would introduce a mandatory obligation to notify the authorities if there is "an accident caused by a product" within two working days "from the moment it knows about the accident". This is particularly huge as it is a significant departure from where we are at the moment, and appears to go much further than equivalent requirements in other parts of the world.
- There are specific provisions relating to the responsible person for placing products on the EU market – we first saw this concept created under Article 4 of the Market Surveillance Regulation (EU) 2019/1020, but this was limited to more heavily-regulated CE marked products. The new proposal extends this requirement to non-CE marked products and requires the responsible person to carry out programmed sample testing.
- It appears to require that unsafe products be reported to both Safety Gate and directly to Member States, as opposed to allowing the choice between those notification options.
- There are specific provisions for the content of product recall notices – with a prohibition on using certain terms, e.g. "voluntary", "precautionary", "rare", "no reported accidents" and in addition, recall notices must include an instruction to immediately stop use.
- There are also provisions relating to the conduct of product recalls, notifying consumers, and the remedies offered including proposals on the mandatory use of social media for recalls and requiring companies to use customer information to directly contact them.
- There are specific provisions for the sharing of information internationally between the European Commission and other regulatory agencies around the world.
- And as a final point, that commitment to ensuring the proposed regulation has teeth is seen with the proposal that businesses which fail to undertake these obligations are likely to incur heavy fines for non-compliance, namely penalties of up to 4% annual turnover.
Whilst this proposal still needs to pass through the European legislative process, and the last attempt at overhauling the General Product Safety Directive became blocked in the European Council mainly over the issue of country of origin marking (country of origin does not feature in this proposal), our view is that there is significant momentum behind this proposal and the Commission is focused on pushing these proposals through. With that in mind, it will be important for businesses to consider the impact of these proposals on them and to provide feedback whilst they can.
There is a tight window for stakeholders to provide feedback to the Commission on these proposals – which is open only until midnight (Brussels time) on 31 August 2021. Further information can be found at this website.
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