A fork in the road? Overhauling the product safety regime post-Brexit

“The government is committed to protecting consumers from unsafe products. From cosmetics to electrical goods, products are essential to our daily lives. Ensuring they are safe underpins consumer confidence and competitive markets.”[1]

The UK has one of the strongest product safety systems in the world, underpinned by product safety legislation that regulates how safe products are supplied and sold, by placing legal obligations on those in the supply chain. This body of law is extensive and complex but, more importantly, has recently been affected by our departure from the European Union.

The Office for Product Safety and Standards (OPSS) (established in 2018 as the new national regulator for product safety) has now published UK Product Safety Review: Call for evidence, seeking views on:

• the longer-term approach to product safety;
• how to ensure that the framework is fit for the future; and
• the prospective reform of product safety laws post-Brexit.

What does the review cover?

The review focuses on five themes:

• Product design, manufacture and placing on the market. How can the current product safety framework be improved, in terms of ease of use and effectiveness? Is conformity assessment and self-assessment working? How can the rules be adapted to support innovation and anticipate changes in manufacture and production? What changes can be made to bring safe products to market more quickly?
• New models of supply. How should product safety be ensured where products reach consumers via new distribution and supply models (including online sales and the sharing economy)? What issues arise from consumers producing (for example, 3D printing) and hiring out and selling products to each other? How can consumers be better educated about online product safety?
• New products and product lifecycles. How can product safety law be made flexible enough to adjust to developments such as connected devices (the Internet of Things) and artificial intelligence? What are the implications of environmental requirements that products have a longer lifecycle? For how long should product safety responsibility lie with the manufacturer? What responsibilities should apply to integrated software, second-hand goods and supply of replacement parts?
• Enforcement considerations. How can the current enforcement system adapt to the challenges of new products and new distribution methods? How well does the current system for corrective action and recalls work? Do enforcers have the right powers and tools to do their jobs? Do consumers have the tools and information to take action on their own behalf?
• A diverse and inclusive framework. Could the current framework be improved to better protect vulnerable groups within society and those with particular needs?

What happens next?

The closing date for responding to the consultation is 3 June 2021, and the government intends to publish a follow-up summary and evidence paper within 12 weeks thereafter.

Prosecution for failing to comply with product safety obligations can result in imprisonment and/or a fine, which for some offences could be unlimited. Enforcement action can result in customs delays, product seizure, stop notices and enforced product recalls. As we enter unchartered territory outside membership of the EU, we await with interest the outcome of the consultation and will report further in due course.

If you would like to discuss any aspect of this article further, please get in touch with a member of our team at sheregulatory@clydeco.com.

Authors: Mark Brookes, Legal Director, and Luisa Lister, Professional Support Lawyer