UK product safety reform: The government’s response to the OPSS’s UK Product Safety Review

This article was co-authored by Eleanor Sinnerton, Trainee Solicitor.

On 5 November 2024, the UK government published its long-awaited response to its ongoing Product Safety Review (PSR). The response outlines the government’s proposals to modernise the existing product safety framework with a view to ensuring that it can respond to new products and future risks, including those posed by advanced technologies and online marketplaces. 

The Office for Product Safety and Standards (OPSS), within the Department for Business and Trade, has led and coordinated the PSR since 2019. As the UK’s national regulator for product safety, construction products and metrology, the OPSS initiated the PSR to ensure that the UK was equipped to maintain its status as a global leader in product safety. 

Through the PSR, the OPSS has sought to identify regulatory and enforcement gaps, and how the existing regime, which comprises a mixture of EU and UK legislation, technical standards and guidance, can be simplified and streamlined in a post-Brexit era with a view to promoting innovation whilst maintaining robust product safety standards.

The Product Regulation and Metrology Bill

Following the Labour government taking office in July 2024, its new legislative agenda included a proposal for a Product Regulation and Metrology Bill (the “Bill”). 

The draft Bill, which was published on 4 September 2024 and is currently making its way through the legislative process, enables the Secretary of State to, by regulation, establish additional safety requirements for high risk products. The government’s response to the PSR highlights those areas which are likely to lead to the introduction of new legislation in due course.

The government’s response: key proposals

Online marketplaces

The rise of online marketplaces (e.g., e-commerce websites, mobile applications) has introduced significant and novel product safety challenges including an increased number of unsafe and counterfeit products, difficulties in verifying the authenticity of sellers and products before they reach consumers and rapid product listings with limited physical inspection.

As reported by the Chartered Trading Standards Institute, in 2021/2022, OPSS data showed that 81% of 2,260 products tested from online marketplaces were non-compliant. In 2022/2023, data showed that 24% of the 3,000 safety notifications related to unsafe toys, with 25% of presenting a serious or high risk. Electrical Safety First also found that the majority (50%) of those aged 55 or above did not feel confident in differentiating between an online retailer and an online marketplace.

Respondents to the OPSS’s consultation in August 2023 expressed support for stronger and clearer responsibilities for online marketplaces to proactively prevent and remove unsafe listings from their sites. Online marketplaces were also supportive of reform that was proportionate to the risks.

To address these unique challenges, the government intends to introduce requirements on online marketplaces to:

• Ensure that sellers operating on their platform comply with product safety obligations and take action against sellers where necessary;
• Prevent non-compliant and unsafe products being made available on online marketplaces;
• Provide consumers with appropriate information, instructions and warnings about products prior to purchase; and
• Cooperate with regulators and provide ongoing assurance by implementing systems and procedures that enable prompt responses to regulatory inquiries and facilitate expeditious action to prevent unsafe products from being made available.

The government will develop more specific requirements on the above. It proposes gathering input through stakeholder engagement in 2025 before introducing such requirements via secondary legislation.

Cross-cutting hazards

The UK’s product safety framework has been operating on a dual approach: establishing baseline requirements through the General Product Safety Regulations 2005 while maintaining product specific sectoral regulations. The PSR will consider addressing cross-cutting hazards that span multiple sectors, rather than focusing solely on sector-specific risks, to demonstrate a more holistic approach to the UK product safety framework. The government will first focus on button batteries which may pose choking hazards, e-cycles, lithium-ion batteries and related fire risks by introducing legislation to address these cross-cutting challenges across the UK internal market.

Digital labelling

The UK government has signalled a significant shift towards digital-first approaches in the product safety framework, particularly regarding product information and labelling requirements such as the UKCA mark. The government is exploring several digital transformation initiatives including:

• The provision of digital information to replace physical documentation requirements in various sectors, including in the cosmetics sector.
• Possible alignment with EU approaches while developing UK-specific digital solutions.

Compliance and enforcement

The government’s response highlights that 64% of respondents to the August 2023 consultation support the OPSS taking a greater role to coordinate and align product safety approaches, including greater collaboration with local authorities and international counterparts.

Other key proposals include:

Key areas requiring clarification

While the UK government’s response to the PSR proposes a broad framework for reform, several critical areas require further clarification.

• Implementation timeline: There remains a lack of specific timelines for implementation of any future regulations. There is also limited guidance on transitional arrangements.
• Conformity assessment procedures: Specific details about new testing standards or protocols for emerging technologies such as AI shall be considered.
• Due diligence standards and responsibility for online marketplaces: Specific requirements for seller verification and product safety and authenticity checks, and detailed allocation of responsibilities between online market places and sellers shall be addressed.
• Clearer mechanisms for cross-border enforcement post-Brexit may need to introduced.
• Digital labelling implementation: Detailed requirements for digital labelling formats and accessibility standards need to be considered.

Business impacts:

The government’s response to the PSR suggests that businesses can expect:

• Increased responsibilities and obligations to be imposed on online marketplaces.
• New safety requirements for emerging technologies, including those integrating AI systems.
• Enhanced obligations for product traceability and documentation including digital labelling.
• More stringent penalties and mandatory corrective actions for non-compliance with product safety requirements.

Next steps

The government has outlined a phased approach to implementing product safety reforms focusing on consumer protection and business adaptation.

In the short term, the government aims to focus on better regulating online marketplaces and cross-cutting hazards. It is already monitoring two of the EU’s proposed legislative changes in relation to noise from outdoor equipment and charger uniformity and has launched respective calls for evidence to help determine if the UK should follow suit.

In the medium-term (12 to 18 months), the government will consider the integration of emerging technologies into the regulatory framework along with a long-term plan to maintain ongoing stakeholder engagement and consultation to align with the UK’s Industrial Strategy which is expected to be released in Spring 2025.

Kennedys will maintain close engagement with various product trade associations and regulatory bodies to ensure businesses remain informed and compliant throughout these changes.