Earlier this month, we reported on the liability aspects of the UK government’s Consultation on Product Safety, as currently contained in the UK Consumer Protection Act 1987 (CPA). Alison Newstead and Marisa Pearce now provide their analysis on the main focus of the Consultation—whether the suite of current UK legislation governing product safety is fit for purpose in a dynamic, complex and increasingly technologically advanced product marketplace.
The UK government has made a call for evidence in a March 2021 Consultation on the effectiveness of the UK’s existing product safety regime, with a view to ensuring that it is fit for purpose both now and throughout the 21st century.
In the late 1980s and early 1990s when the UK’s EU-derived product liability and safety legislation was introduced, what constituted a “product” was a relatively straightforward concept. Legislation was crafted around the concept of tangible products that were generally purchased in retail outlets. Fast forward a few decades and advances in technology, changes to distribution methods and the advent of the ‘Internet of Things’ (IoT) have led to questions being raised as to how, whether and to what level of success current legislative provisions relating to product safety may be applied to these products and technologies. Can the existing framework assure the level of safety that consumers expect? Can consumer confidence and business competitiveness be maintained under the current regime? Is a new approach to product safety needed? Indeed, would such a change be beneficial to the UK?
At EU level, the European Commission has already recognized that consumer protection and legal certainty require clarity in this area and in 2020 published a report on the implications for, and the potential gaps in, the liability and safety frameworks for artificial intelligence, the Internet of Things and robotics. New technologies have been recognized as raising issues concerned with connectivity, autonomy, data dependency, updating of software, opacity and also complexity of products, systems and safety management chains.
At a national level, the UK’s departure from the EU has provided the government with an opportunity to consider whether the current EU-based legislative framework is functioning in the best interests of UK consumers and businesses and whether divergence from the existing EU-derived product safety legislation may be beneficial.
The Office for Product Safety and Standards (OPSS) will therefore be considering whether the existing safety framework offers adequate protection to consumers, is simple to follow and sufficiently flexible to take account of new risks and opportunities, whether it can respond quickly to new and emerging threats and whether consumers are able to make informed decisions about the safety of the products that they use.
The OPSS is soliciting views from a broad spectrum of individuals who interact with all aspects of product safety, and is particularly interested to hear from those consumers with an insight into use of products by vulnerable users, those working in emerging sectors such as artificial intelligence and e-commerce as well as conformity assessment bodies and enforcement authorities.
Evidence is invited in the areas of product design, manufacture, new models of supply, new products and product lifecycles, enforcement and the scope of the product safety framework itself. Any additional comments, evidence, data and analysis that may not respond directly to the questions posed in the Consultation are also welcomed.
The Consultation raises many interesting issues which will no doubt be the subject of continued debate between relevant stakeholders and the legal community. For example, the adequacy of the existing legal framework and the potential lacunas created by new technology are raised with questions such as “How easy is it to understand the current framework of product safety regulation? What areas, if any, could be simplified or made easier to follow?”, “Should regulation be targeted more at the product itself or the manufacturer’s systems that produce it?” and “How well is the conformity assessment system working?”.
The COVID-19 pandemic has also provided an opportunity to explore how nimble the current system is and whether improvements could be made to facilitate the response to similar issues in future, whilst maintaining safety standards: “Reflecting on the response to the Covid-19 pandemic […], what changes could be made to help bring products to market more quickly?”.
There is also recognition that the explosion of online sales raises new challenges and evidence is requested as to what has worked well in addressing these and where opportunities may lie, as well as whether consumers know how to check whether a product purchased online is safe and how to raise any safety concerns. Comments are also solicited on the EU's Product Safety Pledge (a voluntary pledge that has been taken by various online platforms) and its benefits and drawbacks.
Enforcement is a major topic in the consultation—as legislative provisions are of little use if not adequately enforced. Views are sought on how enforcement activity is responding to new technologies and distribution of products, how effective the current corrective action regime is functioning, how the current system can maintain both transparency and confidentiality and how technology and innovation support both enforcement and compliance.
Manufacturers will be pleased to note the government’s desire to promote UK innovation, asking “How could the current product safety framework do more to support innovation or the supply of new technologies to consumers?” and “What areas of the current regulatory framework could the UK tailor to create more opportunities for UK innovation and manufacturing?”. Such opportunities to boost innovation should no doubt be harnessed by industry, particularly in light of the effect of the COVID-19 pandemic on many businesses.
The Consultation closes on 3 June 2021 and a summary of responses and an evidence paper are due to be published by the end of August 2021. Those wishing to shape the future of product safety regulation in the UK should take the opportunity to submit responses and ensure that the UK’s product safety regime is fit for, and competitive within, the 21st century marketplace.