This article was co-authored by Miran Bahra, Trainee Solicitor, London.
As discussed in our previous article, in September 2021 the UK’s national product safety regulator, the Office for Product Safety and Standards (OPSS), announced that they would be updating their service standards.
The new service standards were due to be published in October 2021, clarifying the enforcement role of the OPSS and how they regulate businesses producing and selling products in the UK. Interested stakeholders were invited to comment on the draft service standards by 1 October 2021. The imminent publication of the new service standards is awaited.
What are the proposed changes?
The changes proposed within 'What you can expect of the OPSS: Updated draft for comment', have the potential to fundamentally alter the OPSS’s regulatory functions and include, amongst others, the following significant changes in approach:
- The OPSS's remit now expressly includes its general role as national regulator in respect of product safety.
- Places increased emphasis on promoting innovation.
- Increased and clarified powers in respect of online platforms, customs/border checks, and advisory functions for businesses with product compliance obligations.
See below for the main changes between the OPSS’s 2018 service standards and the new 2021 draft service standards:
OPSS regulation areas
2018 service standards
- The OPSS is the market surveillance or enforcement authority for a wide variety of regulations across the UK.
- The OPSS is responsible for the safety of consumer products and works collaboratively with partners, including local authorities.
- Consumer product safety regulation.
Draft 2021 service standards
The draft standards extend to the OPSS’s national capacity for consumer product regulation noting that the OPSS:
- Is the national regulator for product safety and legal metrology.
- Enforces cases that are nationally significant, novel or contentious.
- Works with local, surveillance and border control authorities to protect consumers and ensure business compliance.
- Enforces a range of goods-based and standards-based regulations.
- Assists local authorities to respond to consumer product safety incidents.
How the OPSS regulates
2018 service standards
- The OPSS’s aim is to protect consumers, businesses and the environment by committing to support UK businesses to invest and innovate.
- Simplifying regulation.
- The OPSS undertakes intelligence led and risk-based market surveillance to identify those likely to face compliance related challenges.
- Act in accordance with the Regulators’ Code and Growth Duty.
- Deal proportionately with non-compliance with legal requirements, as set out in the Enforcement Policy.
- To promote transparency, an annual report is produced on enforcement, market surveillance and statutory enforcement actions that have been undertaken.
Draft 2021 service standards
- The OPSS’s aim is to support and enable businesses to innovate, invest and grow, whilst ensuring that the necessary protections are in place.
- Proportionate approach to non-compliance – with an emphasis in tackling those who put people or the environment at risk.
- Act in accordance with the Regulators’ Code, the Growth Duty and the statutory principles of good regulation.
- Deal proportionately with non-compliance with legal requirements and with product safety issues, as set out in the Enforcement Policy.
- Administer a number of regulatory process requirements.
- Good working relationship with other regulators – both nationally and internationally.
- To promote transparency, an annual Delivery Report will be published that will include detail of the enforcement activities and list the statutory enforcement actions taken.
Advice on compliance
2018 service standards
Draft 2021 service standards
- The draft standards introduce a new advice section that confirms who businesses should contact locally if they require advice on compliance with consumer product safety obligations; promoting a more amalgamated approach at local and national level.
Online goods
2018 service standards
Draft 2021 service standards
Despite being absent in the 2018 service standards, the draft standards confirm that the OPSS:
- Monitors products that are made available and advertised for sale online, including selling on social media platforms.
- Purchases products online for assessment and testing.
Border checks
2018 service standards
Draft 2021 service standards
Since leaving the EU single market, it is expected that border checks for imported products will significantly increase by January 2022; costing an estimated £3 million. The draft standards clarify the OPSS’s role in checking goods at the border:
- Goods arriving in the UK may be subject to controls before being able to be released onto the market.
- The OPSS will work with border control to check goods at the border.
- Sets out the procedure implemented when the OPSS determines that a consignment should be prohibited from circulation pending further checks.
Comment
The draft standards herald a change for particular aspects of product safety regulation, including the OPSS’s general role as national regulator and the nature and incentive of regulatory functions. They also embed mainstay, existing aspects of UK product safety regulators’ enforcement policy – including in particular, proportionate and code-compliant enforcement activities.
Not only do the draft standards provide further clarity on the OPSS’s regulatory and enforcement duties, for the benefit of both consumers and businesses, they also highlight a shift in particular areas of concern, with a fresh focus on customs/border checks post-Brexit and the use of online platforms, bolstered by the COVID-19 pandemic.
We await the OPSS’s finalised service standards, which were due last month, and we hope to see a continuation in the OPSS’s current approach, which is vital for the regulator to carry out and adequately adapt its role in line with the changing landscape of product safety.
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