Coming of Age: Proposed Reforms of European Product Safety laws

Speed Read

On 19 January 2022, the European Parliament published its draft amendments to the European Commission's proposed General Product Safety Regulation (GPSR). These impact both the scope and application of the draft Regulation as published last year, and provide some indication of where the final text might land.

At present, Ireland's product safety rules are largely governed by the General Product Safety Directive (GPSD) which has been in force since 2002¹.  It applies to all products which are not subject to their own separate safety provisions, such as pharmaceuticals and medical devices. It is therefore of wide ranging applicability.

A proposal for a new Regulation on Consumer Product Safety had been adopted by the previous European Commission in 2013 but agreement on the text was never reached. Last June, the von der Leyen Commission published a draft of the GPSR, in line with the New Consumer Agenda of 2020, which sets out proposed significant changes to existing product safety laws.

A public consultation on the draft text was held in Ireland which closed last autumn. So where do matters currently stand with the draft GPSR and what happens next?

Key features of the initial draft GPSR 

The Commission's draft GPSR represents a radical shift in the scope and application of product safety laws, reflecting numerous developments since its predecessor came into force. Some of the key proposed changes are as follows:

• The proposed definition of "online marketplace", which is remarkably broad. In the current draft, this is defined as: "…a provider of an intermediary service using software, including a website, part of a website or an application, operated by or on behalf of a trader, which allows consumers to conclude distance contracts with other traders or consumers for the sale of products covered by this Regulation."
• It is also intended to update the definition of "product" to include second-hand, reused, recycled and refurbished products. 
• The GPSR will also aim to improve the effectiveness of product safety recalls and to ensure that product safety rules are enforced across the supply chain by conferring market surveillance authorities (MSAs) with additional powers. There are a number of MSAs in Ireland depending on the relevant product type, including the Competition and Consumer Protection Commission which has oversight of toys, consumer gas appliances and non-workplace personal protective equipment. Other examples of MSAs include the Health Products Regulatory Authority and the Health and Safety Authority. 
• Another interesting feature of the proposed GPSR is the introduction of an arbitration mechanism which would enable MSAs to refer to the Commission to arbitrate disputes, in cases where Member States have reached different conclusions as to their risk assessment of a product.

European Parliament Recommendations  

In the draft amendments published in January, the Parliament made a number of notable recommendations regarding the Commission's draft GPSR. In particular:

• It has proposed narrowing the definition of "online marketplaces" so as to preclude the GPSR from applying to sales that take place between consumers online. 
• Also as regards online marketplaces, the recommendations include a proposed duty on online marketplaces to communicate with both consumers and merchants regarding product safety issues. If implemented, online marketplaces would be obliged to respond to notifications received by MSAs regarding accidents or product safety issues within five working days. This is to allow businesses an opportunity to investigate reported accidents before going to the regulator. If the investigation shows that the accident was caused by a product presenting a health and safety risk, businesses will have to notify the regulator within two working days.
• Another interesting feature of the Parliament's proposals is the recommendation that the EU Product Safety Pledge be incorporated into the GPSR by way of voluntary commitment. The Pledge, which is an EU Commission initiative, was first signed in 2018 by four major online marketplaces. It outlines areas where online intermediaries voluntarily agree to take specific actions in relation to the safety of non-food consumer products that are sold online by third parties on their marketplaces, to the extent reasonably and commercially practicable and in regular dialogue with the relevant authorities.
• The Parliament has also recommended that certain product information can be provided electronically – something which is likely to be welcomed by businesses. It is expected that this will be of particular value where the space for providing these details on labels/packaging is limited. In terms of traceability, the information that is provided with a product will have to set out the manufacturer's name, trade name (or trade mark), postal address and an address (email or website) where they can be contacted. 
• Where there is a product recall, the Parliament has recommended that the value of the product be calculated based on the price that the consumer paid when purchasing the product. 
• The proposals have removed the idea of "reasonably foreseeable misuse" from the safe product definition, with the Parliament highlighting that although reasonably foreseeable use could be tested, the same could not be said in the case of reasonably foreseeable misuse. 
• The proposals also recommend a reporting mechanism whereby Member States will have to publish the names of economic operators who breached the GPSR. 
• Given the radical changes being introduced from the perspective of businesses, the proposed implementation period has been extended to 12 months after entry into force (previously 6 months).

Next steps for GPSR

The Parliament's report offers a flavour of the changes to the draft Regulation that are coming down the track. However, as the GPSR remains in the EU legislative process, it could be subject to further amendments before being finalised. It is also hoped that the stakeholder submissions arising from the public consultation, which was held in Ireland and which concluded on 24 September 2021 will be analysed and responded to. Next up, it is over to the Council of the European Union to consider whether to accept the Parliament's recommendations and or choose to make its own amendments, in which case it will be brought back to the Parliament for a second reading. 

Nevertheless, while the final form of the text is not yet clear, it is evident that the GSPR will introduce material changes to general product and safety liability laws. These (coupled with the e-surveillance tool) are likely to represent a fundamental reset of the European product safety landscape going forward, such that all players in the supply chain will need to be ready to adapt to the changes. We will continue to keep you appraised as matters develop.

Finally, on 25 April, the European Commission announced a new e-surveillance tool called "web-crawler" which will "...support national authorities in the detection of online offers of dangerous products..". Whilst no further information is available, this is clearly also a development to watch in this space.

For more information, please contact Katie O'Connor, partner, Róise Nic Ghráinne, associate, Orla Clayton, Knowledge lawyer or or any member of A&L Goodbody Disputes and Investigations team.

Date published: 3 May 2022

¹ European Communities (General Product Safety) Regulations 2004