The Office for Product Safety and Standards and enforcement – five years on

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	Dealing with non-compliance in a timely and proportionate manner. Ensuring businesses have access to clear information and guidance. Delivering active enforcement through working with local authorities and other regulators.
Ensuring that product regulations are fit for purpose	Simplifying and modernising the product regulatory framework. Carrying out a Product Safety Review. Supporting the development of construction product regulations. Ensuring that technical annexes to legislation are up to date.
Ensuring major online marketplaces play their part in protecting UK consumers form unsafe goods	Building upon the OPSS’ enforcement capability. Strengthening checks on the compliance of products sold online. Undertaking market surveillance of online supply chains and removing unsafe products from the market.
Developing its understanding of the opportunities and risks stemming from emerging technology and innovation	Making best use of specialist advice and analytical tools. Carrying out horizon scanning to understand upcoming technology changes and product innovation. Ensuring that its regulator approach adapts to these changes. Working with other nations and expert bodies and participating in the development of up to date international standards.
Targeting regulatory activity through timely interventions and a new risk methodology	Using an improved methodology for product safety risk assessment and supporting local authorities in applying the same. Bolstering intelligence and data gathering to provide enhance evidence base on emerging risks. Using accurate and detailed information to inform policy and enforcement decisions.

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	The impact or potential impact of the non-compliance or product safety risk. The willingness and ability of the business to prevent non-compliance, taking account of compliance history, business size, capacity and the stage in the business lifecycle. The maturity of the legislation and levels of awareness of its requirements. The steps taken by the business to prevent the non-compliance and any clear reasons for the failure. The likely impact of the proposed action on the business, both in terms of remedying the non-compliance and in terms of economic costs. The likely impact of the proposed action on the wider business community, both in terms of deterring non-compliance and in terms of economic benefits to legitimate businesses. The ability and willingness of the business to address the non-compliance or product safety risk in an effective manner – we will take account of an early, positive and co-operative approach.
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	The risk associated with the non-compliance is relatively low. The legislative requirements have been recently implemented or do not have a high profile in the business community. The business has (a) a good record of compliance; or (b) has acted in good faith; or (c) has demonstrated a willingness to rectify the issues. The non-compliance can be attributed to the act or default of a third party.
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: The business has provided sufficient detail (in relation to both the non-compliance(s) or potential safety risk and any proposed action(s)). The time period proposed for completing the proposed actions is achievable and appropriate, having regard to the nature, seriousness and circumstances of the relevant non-compliance. There is evidence of a positive commitment to the proposed actions and that the business is likely to meet that commitment. Any actions that are proposed in order to address continuing non-compliance appear adequate to secure that the non-compliance does not continue. Any corrective action or actions proposed is adequate to address the harm and to prevent future non-compliance.
Give statutory (legal) notices	The statutory (legal) notices vary in nature depending on the various legislative regimes. This may for example: Require that any non-compliance is rectified or require action to prevent future non-compliance. Prohibit specified activities until the non-compliance has been rectified and/or require certain safeguards to be implemented to prevent future non-compliance. Prohibit the placing of non-compliant goods on the market. Require that any harm arising from non-compliance is addressed. 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: Any early action to remedy the non-compliance or its effects; ay restorative or restitutional action taken in relation to any loss suffered regulating form non-compliance. Prompt and complete voluntary disclosure in relation to the non-compliance. The compliance history. The length of time of the non-compliant behaviour. Any financial gain attributable to the non-compliance. Any available information concerning the financial position of the business. Whether the total monetary penalty is proportionate to the non-compliance behaviour.
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 satisfied that there is sufficient evidence to provide a conviction against the offender. The offender admits the offence. The offender consents to be being cautioned. It is in the public interest to offer a simple caution rather than to prosecute.
Prosecute	The OPSS is further permitted to: Institute criminal proceedings in England or Wales. Report the case to the Procurator Fiscal in Scotland. Report or the Public Prosecution Service in Northern Ireland.

Comment

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.

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