On 31 August 2022, the Office for Product Safety and Standards (OPSS) published its Product Regulation Strategy for 2022 to 2025 (2022-2025 Strategy).
As part of this, the OPSS set the following core objectives to support its purpose to “protect related harm, ensuring consumers and businesses can buy and sell their products with confidence”:
- Deliver protection through responsive policy and active enforcement.
- Apply policies and practices that reflect the needs of citizens.
- Enable responsible businesses to thrive.
- Co-ordinate local and national regulation.
- Inspire confidence as a trusted regulator.
The OPSS confirmed that its main activities to help deliver protection through responsive policy and active enforcement will include as follows:
|Holding businesses to their legal obligations||
|Ensuring that product regulations are fit for purpose||
|Ensuring major online marketplaces play their part in protecting UK consumers form unsafe goods||
|Developing its understanding of the opportunities and risks stemming from emerging technology and innovation||
|Targeting regulatory activity through timely interventions and a new risk methodology||
OPSS’ revised enforcement policy and accompanying guidance
On 29 June 2023, the OPSS published its revised enforcement policy and accompanying guidance (the Enforcement Policy) which is intended to set a framework for the OPSS decision making in relation to non-compliance, in line with the 2022-2025 Strategy.
The OPSS’ approach to dealing with product safety non-compliance
The Enforcement Policy confirms that the OPSS’ approach to dealing with product safety non-compliance is determined (a) through consideration of the non-compliance; (b) the approach of the business in dealing with the non-compliance; and (c) the evidence available. In particular:
|Factors the OPSS will take into account||
|Collaboration with regulators||The OPSS will continue to work closely with other regulators where they share responsibility for delivering regulation or where there is an overlap of remit.|
|Border control||The OPSS will work with border control authorities to ensure that non-compliant products are not placed on the market.|
|International cooperation||If the OPSS identify non-compliance with results in products being seized withdrawn from sale, or recalled, and it is considered that the risk is beyond the UK, the OPSS will make a referral to their counterpart(s) in the relevant country(ies).|
Where the OPSS does require businesses to take action to remedy any product safety non-compliance, they will ensure that the nature of the non-compliance(s) is clearly explained, be available to discuss what is required to achieve compliance, clearly explain any actions required, timescales in relation to any actions required and details of how to appeal against any advice provided and/or actions required and/or decisions taken.
Decisions on enforcement action
The OPSS’ enforcement powers in dealing with non-compliance are wide reaching and are dependent upon (a) the specific legislative regimes; (b) the nature of the non-compliance; and (c) the desired outcome of the intervention. The Enforcement Policy confirms that the OPSS is empowered to:
|Advise, provide guidance and written warnings||
|Agree actions with the business / “Enforcement Undertaking”||
Although certain legislative regimes provide a statutory basis for the business to propose a written undertaking, which is referred to as an ‘Enforcement Undertaking, the OPSS may nevertheless decide to agree to actions proposed by a business where it is satisfied that:
|Give statutory (legal) notices||
The statutory (legal) notices vary in nature depending on the various legislative regimes. This may for example:
A statutory (legal) notice will clearly set out the relevant legislative regime, the grounds for enforcement action, contact details of the OPSS investigating officer, actions which must be taken, the applicable timescales and an explanation of the relevant appeals process.
|Impose monetary penalties||
Under certain legislative regimes the OPSS can impose monetary penalties without recourse to the criminal courts. However, a failure to pay a monetary penalty may result in the OPSS pursuing the penalty as a debt in the relevant civil court or prosecution.
When calculating the level of the monetary penalty, the OPSS will consider:
|Impose a simple caution||
The OPSS may use simple cautions as a proportionate alternative to prosecution, other than in Scotland and Northern Ireland. A simple caution will only be considered when:
The OPSS is further permitted to:
Five years since its inception, the OPSS continues to cement its position as the UK’s overarching product safety regulator and to deliver its key objective to ensure protection through responsive policy and active enforcement. From the above, it is clear that the OPSS will (amongst other matters) consider a business’s prior record of product safety compliance, the length of time of non-compliance, its cooperation with the regulator and its willingness to rectify the issue(s) when determining how to deal with product safety non-compliance. As a result, businesses should ensure that they implement robust product safety compliance procedures and policies, train staff on how to identify and effectively report suspected product safety incidents and ensure escalation is made to the regulator at the appropriate time.