One step closer: Reform of European product safety laws progresses
One step closer: Reform of European product safety laws progresses
On the 21 December 2022, the revised text of General Product Safety Regulation (GPSR) was made public. This revised text is set to replace the General Product Safety Directive 2001/95 (GPSD). The publication was by way of a communication between the Council of the European Union (the Council) and the European Parliament (the Parliament) and gives a better indication as to where the final text of the GPSR is headed – in particular, it indicates how the GPSR is set to tackle the safety challenges presented by emerging technologies. This text follows on from the draft amendments which were published by the Parliament in January 2022. Further information on those amendments is in our previous briefing here.
The reforms seek to overhaul the product safety regime governing non-food consumer goods, currently governed by the GPSD – which has been in place since 2001. There was an attempt at reform in 2013, which did not ultimately come to pass. The catalyst for the current reforms was the publication of a draft GPSR by the European Commission (the Commission) in June 2020. Importantly, unlike the GPSD, the GPSR will take the form of a regulation, which will be directly applicable in all Member States once it comes into force. We expect this will be some time in the H2 2024.
Overview of the changes to the latest text of the GPSR:
The Council adopted a number of the Parliament's key recommendations including:
Definition of online marketplace: This has been altered to preclude the GSPR from applying to sales which take place between consumers online. As we identified in our previous briefing, the Commission's original proposal was remarkably broad and did not preclude such private sales. Mobile applications are now also included in what is seen as an online interface.
Incorporation of EU Product Safety Pledge: This pledge has been incorporated by way of voluntary commitment which providers of online marketplaces are encouraged to sign up to.
Refund amounts in product recall scenario: Where a product recall has been initiated, the consumer will be entitled to repair, replacement or adequate refund. The current text now reflects that the amount of the refund should be at least equal to the price paid by the consumer.
Removal of 'reasonably foreseeable misuse' concept as regards safe products: Economic operators will only need to consider the safety of a product under normal or reasonably foreseeable conditions of use. The concept of 'reasonably foreseeable misuse' as contained in the Commission's original proposal has been removed.
Threshold for reporting obligations: Where an accident caused by a product has "resulted in an individual's death or in serious adverse effects on their health and safety, permanent or temporary, including injuries, other damages to the body, illnesses and chronic health effects" there will be a mandatory obligation on manufacturers to notify authorities of such occurrence via Safety Gate. This threshold was not contained in the Commission's original text of the GPSR.
New obligations under GSPR
As the legislative process progresses, it is useful to recap the shape of the general key proposed obligations under the GPSR. At present, these are largely the same as the original text published in 2020.
Reporting obligations: Where a manufacturer has reason to believe that a product which they have placed on the market is dangerous, they will be required to report such information immediately to the Market Surveillance Authorities (MSA) via the Safety Business Gateway (SBG). The SBG will also operate as a mechanism which allows for manufacturers to report an accident caused by their product 'without undue delay'. Similarly, importers and distributors will be obliged to report any accident to the manufacturer without undue delay.
New obligations on online marketplaces: These will include establishing a single point of contact for market surveillance authorities and also consumers, to cooperate with authorities and to respond to notices from authorities.
Notification of affected consumers: Where a product recall has been initiated, sellers will be required to notify all affected consumers directly without delay, where they have the necessary customer data. The Commission may introduce requirements for sellers of specific products to provide consumers with the possibility of registering their product for the purpose of being notified directly.
Economic operator response for compliance: To ensure the effective enforcement of the Regulation, the GPSR only permits products to be placed on the EU market where there is an 'economic operator' which can ensure compliance with the obligations such as providing market surveillance authorities with an interlocutor and the possible risks related to a product. An economic operator is defined as "the manufacturer, the authorised representative, the importer, the distributor, the fulfilment service provider or any other legal person who is subject to obligations in relation to the manufacture of products". Contact information of the authorised representative responsible will need to be indicated with the product.
Obligation to assess product risks: The GPSR will impose obligations to carry out risk assessments on products before being placed on the market. The definition of 'serious risk' remains much the same as under the GPSD but the GPSR introduces a definition of 'risk' to mean the "combination of the probability of an occurrence of a hazard causing harm and the degree of severity of that harm" which will provide clearer guidance for the purposes of risk assessments. One notable new change is that this risk assessment includes situations where a software update may substantially modify the original product so as to impact on the safety of that product. In such situations, the product will be subject to a new risk assessment.
Where do we go from here?
This revised text gives a good indication of what to expect from the GPSR. However it still needs to be approved by the European Parliament and Council. Overall there are increased obligations on those throughout the supply chain on assessing the safety of products and reporting any information upon finding that a product is unsafe. If adopted, this Regulation will be followed by an 18 month transition period before it comes into force. Unlike the current regime, which is by way of overarching directive implemented at a member state level, this GPSR will leave less wriggle room for Member States as it will have direct effect.
In line with the proposal for a revised Product Liability Directive and legislative proposals around artificial intelligence liability (see briefing here), this is an intense period of reform in the products/consumer safety landscape, which has been regulated by legislation which has been outflanked by both changes in technology and marketplace, for some time now.
With thanks to Paul Dermody for his assistance in preparing this article.