The UK’s product safety review — The Government’s response: will there be any change?

Back in March 2021, the Office for Product Safety & Standards (OPSS) opened a review into the UK’s product safety regulatory framework and whether it was fit for the 21st century.

The review was intended to be wide-ranging and focused on five key themes:

1. Product design, manufacture and placing on the market
2. New models of supply (particularly e-commerce)
3. New products and product lifestyles (such as products using Artificial Intelligence (AI))
4. Enforcement
5. A diverse and inclusive product safety framework

The public call for evidence closed in June 2021 and the intention was for the Government’s response to be published by the end of September 2021. The response was, however, published earlier this month.

It is noted that the call for evidence recorded 158 responses. Bearing in mind the wide-ranging impact any changes to product liability law and regulation would have, this is not a very high response rate. For example, only 18 manufacturers or distributors provided responses.

It is clear from the response that the OPSS intends for its review to continue and it hopes that views from small(er) businesses will increase.

General themes raised by respondents did include:

• The current system of regulation creates challenges in today’s supply and product model world
• The current outcomes-based framework, supported by voluntary product standards, can support innovation by allowing manufacturers flexibility in how they meet essential safety requirements
• The significant increase in online sales, particularly those through third party listings on online marketplaces and platforms, along with consumers buying directly from abroad, pose challenges to the supply chain responsibilities in our current legal framework. This potentially ultimately affects consumer ability to seek redress when things go wrong
• The growth of new technologies such as AI mixing with the ‘old world’ of products must be looked at
• Future innovation, whatever that looks like, must have a legal framework in place to adapt and respond swiftly to ensure that such innovation is safe
• The ESG agenda, transition to net zero and the ‘right to repair’ will affect products, risk and supply chain issues. As products last longer, consumers must have confidence in their safety
• Respondents wanted a simple and proportionate framework, that was also consistent, clear and ensured that regulation was aligned with real life levels of inherent hazard and supply chain risk

The response accepted that the current framework required radical reform to be more adaptable and to be able to respond to fast-moving change within the product development arena.
There was reference to a long-term approach but also areas where immediate actions could be taken. Such early steps include:-

• Implementing a programme of work focusing on the safety and compliance of goods sold by third party sellers on online marketplaces. No detail of what that programme would include was provided in the response however
• Identifying digital tools to support regulators when taking action. This does not seem to be an immediate action
• Continue to challenge major online marketplaces to play their part in protecting UK consumers from unsafe goods
• Empowering consumers to make good choices and use product safety information channels to highlight the safety risks involved when buying products online. These latter two actions do not seek to place any more legal responsibility on online marketplaces than they already have. Some consumer associations have already voiced their disappointment at this
• Develop further support training for enforcement authorities and clarify the breadth and scope of enforcement powers
• OPSS will continue to develop a more rigorous, agile and up-to-date risk assessment methodology to assist both themselves and other relevant market surveillance authorities in order to drive improvement in how risk data is gathered and how that data is used to support proportionate and effective risk management.

The OPSS observes that there is a genuine opportunity to think boldly about how product safety can be regulated now that the UK has left the EU. It accepts, however, that many challenges to overcome are global in nature and will look to take an international approach by working with institutions and regulators worldwide.

The OPSS also notes that adapting the future framework will likely require legislative change and further proposals for consultation will be put forward in due course.

In conclusion, a detailed response but with very few firm actions or specific detail as to what will definitely change in the future.

We will continue to monitor what the Government and OPSS do in respect of product safety and will keep you updated.