The EU has led the charge for reform, showing a commitment to developing legislation that balances the promotion of innovation with consumer protection. Over the last year, there has been a raft of actual and proposed general product safety legislation.
The General Product Safety Regulation
In June 2021, the European Commission (EC) proposed revisions to the 20 year old General Product Safety Directive (GPSD) by virtue of the General Product Safety Regulation (GPSR).
The GPSR identifies various areas of improvement including market surveillance, product recalls, cybersecurity, online marketplaces and new technologies such as connected products and artificial intelligence (AI), most of which are subject to separate pieces of draft EU legislation which are currently being considered in parallel to the GPSR.
The GPSR remains under review by EU institutions following the European Parliament’s proposed amendments published in December 2021 and a vote on whether to enshrine the GPSR in law is expected to take place in May 2022.
Implementation of the GPSR would significantly increase compliance obligations on businesses involved in all aspects of the product supply chain. The GPSR remains under review by EU institutions following the European Parliament’s proposed amendments published in December 2021.
The Market Surveillance Regulation (MSR) (Regulation (EU) 2019/1020)
In July 2021, the MSR came into force to bring online platforms (OPs), including online marketplaces, within the remit of the EU’s product safety framework, establishing more robust processes for market surveillance, compliance controls and promoting closer cross-border cooperation among enforcement authorities.
Proposals to regulate AI
The safety and liability implications of AI has been one of the most debated topics in recent years. In April 2021, the EC published a landmark proposal for a regulation laying down harmonised rules on AI designed to complement existing EU legislation, such as the GDPR.
The EC’s proposals were followed by the publication of a draft report by the European Parliament’s Special Committee on Artificial Intelligence in a Digital Age (AIDA), which highlights that the EU should focus on fostering the enormous potential of AI. The report was adopted following a vote by the Special Committee on 22 March 2022 and there will be a plenary debate and vote in May 2022.
In a post Brexit era, the UK will not be directly impacted by reform of the EU’s regime and it looks poised to depart further from the EU by seeking to modify retained EU laws and creating its own legal framework.
Reform of the UK product safety regulatory framework
The outcome of the Call for Evidence initiated by the Office for Product Safety and Standards (OPSS) in March 2021 makes clear that, although aspects of the existing product safety framework functions well, it is likely to be subject to extensive reform. Although the UK Government is yet to publish draft legislation, reform is expected to simplify and strengthen the current framework, particularly in relation to new technologies, online and marketplace sales, enforcements, and sustainability and net zero targets.
Increased regulatory focus on product safety more generally could mean that any regulatory breach or regulatory non-compliance becomes a more central focus in a court’s assessment of defect in future product liability claims.