Productwise 3-2-1, our monthly bite-sized digest of the current key issues in products law.
14th edition – August 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 moves to regulate cybersecurity under the EU Radio Equipment Directive, proposed reforms of UK consumer laws (with collective redress and harsher penalties in scope), update on CPSC nominations, e-labelling in the EU, the CPSC's notice of proposed rulemaking on furniture stability and looking back at the General Data Protection Regulation three years on with 10 key developments you should know.
3 top things from the month just gone
- Proposed Delegated Act under the EU Radio Equipment Directive to strengthen the cybersecurity of connected products published. Under the draft proposals published on 30 July 2021, new essential requirements will be introduced for a wide range of radio equipment aimed at ensuring that the radio equipment doesn't harm the network, protects the user's personal data and privacy and prevents fraud. Compliance with the new essential requirements will need to be demonstrated as part of the conformity assessment process and EU authorities will be empowered under the Radio Equipment Directive to remove devices that don't comply from the market. A 30-month transition period is proposed. Feedback on the proposed Delegated Act closes 27 August 2021. See here to find out more.
- Consultation on proposed reforms to UK consumer laws published, includes enhanced collective redress and fines of up to 10% of annual turnover. The UK government is looking to reform UK consumer laws, with a consultation seeking views on proposals published by the UK Competition and Markets Authority (CMA) on 20 July 2021. Three things that caught our eye: 1) the review is looking at the need for enhanced collective redress options, which is no real surprise given that broad-based collective redress mechanisms are about to come into force across the entire EU in 2023 (see our blog here); 2) the review is also looking at introducing prohibitions to tackle fake reviews. This is another area where new rules will come into force in the EU next year (see our blog here); and 3) there is a strong focus on strengthening enforcement, including proposed fines of up to 10% of global annual turnover for traders that breach UK consumer laws, and giving powers to the CMA to enforce consumer laws directly rather than having to go through a formal court process. It has to be anticipated that the UK government would not want to see UK consumers being left behind EU consumers, in terms of protections and rights to compensation, and we expect the outcome of this review being reforms in the UK that match, if not exceed upcoming EU measures, in terms of levels of protection. Feedback closes on 1 October 2021. See here for more information.
- Update on CPSC nominations. On 28 July 2021, the Senate Committee on Commerce, Science, and Transportation held a hearing regarding the nomination of Alexander Hoehn-Saric as Chairman, and Mary Boyle and Richard Trumka Jr., to be Commissioners of the U.S. Consumer Product Safety Commission (CPSC). The nominees handled questions well during the hearing, although the tenor of the questions from several US Senators and some of the responses hinted toward a likely increase in CPSC activity in the coming years. The agency has recently become very active with mandatory recall litigation, filing two recent lawsuits against thyssenkrupp and Amazon to force those companies to perform recalls.
2 things to look out for
- E-labelling on the agenda in the EU. The evaluation of the Low Voltage Directive published by the European Commission on 14 July 2021 notes that e-labelling is an issue that has been raised across many sectors and concludes that it could be addressed by a possible future reform of the New Legislative Framework (NLF) (in effect the template for EU product rules for CE-marked products). Looking ahead, the Commission is currently undertaking an evaluation of the NLF, with a public consultation scheduled for later this year. According to the roadmap for the NLF initiative, plans include looking at whether affixing the CE marking and other product information to the product itself continues to be appropriate as part of the evaluation, opening the door for further discussions on e-labelling. A copy of the evaluation of the Low Voltage Directive can be found here and further information on the evaluation of the NLF here.
- CPSC Releases Notice of Proposed Rulemaking on Furniture Stability. On 14 July 2021 the CPSC released a Notice of Proposed Rulemaking (NPR), along with a nearly 1,200 page briefing package, to create a safety standard for clothing storage units. For years, furniture stability has been a top priority of the agency, and the NPR is a significant step towards toughening requirements for furniture manufacturers. In addition to requiring that clothing storage units be able to withstand much greater tipover forces than the current industry standard, ASTM F2057-19, the proposed rule also seeks to require a new stability hang tag, similar to Energy Star labels, that would rate furniture's performance based on the new stability test procedures. The NPR has not yet been published in the Federal Register, but when it is published, the public will be provided at least 75 days to comment.
1 top practice tip
- GDPR Three Years on the Road: The 10 Key Developments You Should Know. On the third anniversary of the General Data Protection Regulation (GDPR), Cooley's cyber/data/privacy team started a series of webinars focused on the GDPR. The GDPR is relevant for so many consumer products businesses because they handle personal data in the form of customer data and injury data. The first webinar covers what they consider "the Top 10 key developments you should know" concerning the implementation of this ground-breaking personal data privacy regime. Watch the webinar or read the headline takeaways here.
The Cooley Products Team
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.