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This article was co-authored by Natalie Man, Litigation Assistant, London.
There have recently been sweeping changes in respect of EU’s toy safety regulatory regime. These ongoing developments are set to fundamentally and irrevocably change the legal landscape in respect of these products, and therefore industry should be aware of the matters as they continue to unfold.
Increased legal obligations for foreign companies selling toys to EU consumers
The direct application of the EU’s new Market Surveillance Regulation (MSR) 2019/1020, a regulation intended to provide a uniform and efficient implementation and enforcement of product regulatory requirements across all Member States, to products covered by EU’s mainstay toy safety legislation (the Toy Safety Directive 2008/48/EC, TSD) has recently been confirmed by the European Commission (EC).
This development confirms the fact that the significant additional obligations under the MSR, including in particular the new requirement for foreign-based companies selling to the EU to have an EU-based entity answerable for product compliance matters, will apply to those selling products under the TSD. This is one of many significant, additional legal requirements imposed under the MSR on those selling products under the TSD.
Evaluation and revision of mainstay toy safety laws
The TSD, as EU’s mainstay product safety legislation that applies to toys and children products, will be significantly affected by foreshadowed legislative changes following an assessment of the regime by the European Commission which found the following issues with the current regime:
- The TSD is still deficient in a number of areas, particularly in respect of chemicals whereby set limit values for chemicals need to cover a wider range of toy products and not just those toys for children under 36 months that intend to be put in the mouth.
- There was positive feedback from stakeholders regarding the internal market and the effectiveness of the TSD.
- Dangerous toys continue to be placed on the market despite the TSD’s relevance being generally recognised. Although it was noted that the TSD does not adapt as quickly as it could to technical developments. This is the case for example to new risks with respect to personal privacy data protection from internet-connected toys
- Market surveillance initiatives with found to be lacking, such as talking dolls or robots that ‘communicate’ with children.
- Finally, the TSD is not as effective when it comes to inspections and enforcement procedures.
Following the abovementioned review of the TSD, on 5 October 2021, the EC launched a roadmap for resultant initiatives and proposed legislative changes to address the issues identified by the evaluation, including by doing the following:
- Developing the effectiveness of market surveillance and enforcement, the EC aims to implement processes such as a digital product passports detailing manufacturer compliance documentation for specific products. This would aim to reduce the administrative burden on border control concerning imports and in the long term could even replace the existing EU Declaration of Conformity.
- Establishing lists for certain substances, e.g. preservatives and colourants.
- Setting chemical limit values for toys by adding to the existing limited that only apply for children under 36 months.
- Clarifying requirements to ensure chemical composition of toys are included on labels, particularly via digital labelling.
Next, an Impact Assessment which the EC hopes will identify any further problems with the TSD and set out the policy option, will be launched.
Revised guidance issued in respect of TSD
As the industry waits for mainstay revision to the legal framework, the EC has issued a guidance document, on 22 September 2021 by the EC, which acts as a manual for all stakeholders directly affected by the TSD.
The guidance is designed to facilitate the application of the TSD but it is the national transposition of the Directive into national law that is legally binding. Particularly the guidance note is useful in clarifying to all parties affected the toys/products that do not fit the standard definition of what constitutes a toy, essentially a product that has a play value for children under 14 years of age. Not only have revisions been made to regulatory references throughout, the guidance also addresses other relevant topics such as online selling, balloons, second-hand toys and chemical testing methods, which have been modified as part of Rev 1.10.
Overall the guidance is intended to assist in guaranteeing the free movement of toys in the Community territory throughout Member States whilst ensuring the TSD addresses consumers increased preoccupation with technological developments in the toys market.
Commentary
Manufacturers will need to keep abreast of any modifications to the TSD and application of the MSR to products under the TSD and implement the necessary changes to their practices to ensure their toys are compliant and meet the required market standards.
United Kingdom