United States: Productwise 3-2-1 - April 2021

10th edition - April 2021

Here's the next edition of our monthly bite-sized digest, Productwise 3-2-1  where each month, we'll be bringing 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 review of the UK product safety framework, three new pieces of EU guidance, CPSC's Mid-Year One plan, consultations launched in the EU and the UK on proposals to make products more sustainable, proposed new EU rules on batteries and the importance of thorough pre-market review procedures.

3 top things from the month just gone

• Review of the UK product safety framework announced, will UK product rules stay aligned with the EU? The UK Government announced that it is launching a broad-ranging review of the UK product safety framework, specifically with a view to "modernising" the laws to ensure they are fit for the technologies and markets of the future. Over 20 sets of regulations are in scope of the review. The tone of the UK Government's announcement is the clearest sign yet that the UK is very much looking to make its own mark in this area, rather than simply moving along in line with developments in the EU and in other international contexts and raises the distinct possibility that the UK will not necessarily stay closely aligned with EU product rules over time. A call for evidence has been launched, closing on 3 June 2021. Read our blog here to find out more.
• European Commission adopted three new guidance documents covering mutual recognition, the new requirement for a responsible economic operator in the EU for certain products and the application of treaty provisions regarding the free movement of goods. The following three guidance documents were adopted on 5 March 2021 and subsequently published in the Official Journal of the European Union: 1) Guidance document for the application of Regulation (EU) 2019/515 on the mutual recognition of goods lawfully marketed in another Member State; 2) Guidelines for economic operators and market surveillance authorities on the practical implementation of Article 4 of Regulation (EU) 2019/1020 on market surveillance and compliance of products; and 3) Guide on Articles 34-36 of the Treaty on the Functioning of the European Union (TFEU).  See our blog here for a summary and links to the guidance.
• CPSC's 2021 Mid-Year One plan passed, projects focus on diversity and equity. The first of a two-part 2021 mid-year spending plan was passed by the CPSC on 25 March 2021. Acting Chairman Robert Adler issued a statement welcoming the vote noting that "in effect, this plan approves enhanced efforts for developing specific approaches that identify and address product hazards disproportionately affecting minority communities and underserved populations".  Adler explained that upcoming projects in Mid-Year One include (among others): safety equity studies to determine whether there are specific areas of risk within ethnic, racial, socioeconomic, and other diverse populations that face more danger from higher-risk product categories; safety education materials to ensure authenticity and full representation for vulnerable populations; improving language and disability access to the CPSC's work; and safety campaigns specifically designed to speak to the unique risks and needs of diverse and vulnerable populations. Commissioner Elliot Kaye first initiated official efforts to address safety disparities among vulnerable populations, proposing amendments that were adopted by the Commission to include projects to tackle these issues in the original Fiscal Year 2021 Operating Plan adopted by the Commission in late 2020 (see Kaye's statement released last year). The second part, Mid-Year Two, is expected to be put to a vote shortly and will include plans put forward by CPSC staffers on various projects that the CPSC has been directed to focus on under recently passed legislation including (among others): improving the safety of imports; upholstered furniture; portable fuel containers; carbon monoxide detectors and product risks arising from the COVID-19 pandemic.  

2 things to look out for

• Consultations in the EU and UK on proposed measures to make products more sustainable. The European Commission launched a public consultation on its "Sustainable Products Initiative" for products placed on the EU market on 17 March 2021. This initiative has the objective of introducing measures to make products more sustainable, durable, repairable, recyclable and energy efficient. The aim of the consultation is to gather opinions and evidence from stakeholders on the initiative, including its possible scope, objectives and the main policy options that should be considered for its implementation. The consultation closes on 9 June 2021. Over the in the UK, the Government launched a consultation its "Waste Prevention Programme for England" that includes proposed measures for products covering similar themes to the EU's "Sustainable Products Initiative" on 18 March 2021. The UK proposals are looking to focus initially on construction products, textiles, furniture, electronics, vehicles, food and plastic packaging. The UK consultation closes on 10 June 2021. We will be posting more on this on our blog.

• Proposed new EU rules on batteries. The European Commission's proposed new legislation on batteries has started working its way through the EU legislative process. The proposed new rules published on 10 December 2020 seek to introduce requirements that cover the full lifecycle of batteries, from design and production to reuse and recycling and imposes obligations on the manufacturer, importer and distributor. The European Commission described the proposed regulation as a prototype of a new way of regulating products on a lifecycle basis, using the internal market regulatory framework to promote sustainability during the first exchange of views between the European Parliament and European Commission on 17 March 2021. This is a really important piece of new legislation for companies that place batteries (whether alone or in products) on the EU market. It seeks to introduce new obligations that companies need to ensure they understand covering aspects of safety, sustainability, electrochemical performance and durability, labelling and information requirements. The Commission is working towards adopting the legislation by 2022. A copy of the proposed legislation can be found here. Get in touch if you'd like to know more.

1 top practice tip

• The importance of thorough pre-market review procedures: thismonth's top practice tip is from J.G. Harrington and Henry Wendel from our Washington DC office. They've posted an update on our Productwise blog on recent US Federal Communications Commission (FCC) decisions that act as a reminder to companies designing, manufacturing and marketing electronic devices of the importance of thorough pre-market review procedures. A takeaway from the blog is that while the FCC's equipment authorization rules can be onerous, making plans early in the design process can prevent material disruptions in product rollout. That planning also can eliminate costly risks associated with post-manufacturing enforcement action from the FCC.  To find out more, read their blog here.

Any comments or feedback, then please feel free to contact the authors, or any of your usual contacts within the team, who would love to hear from you.

Best wishes,

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.