A Brief History
The UK’s current consumer legislation was primarily implemented in 1987 by virtue of the Consumer Protection Act 1987 (CPA). This was introduced to comply with the EU Product Liability Directive (85/374/EEC) (PLD).
The CPA established a no fault/strict liability regime to enable claimants to claim compensation from the producer of a defective product.
The world has moved on since both the PLD and CPA were introduced. There has been a significant shift in the way products are bought and sold, with huge numbers of sales being conducted online. There has also been a huge increase in the use of software, including AI, in those products.
Legislation has been slow to catch up. The EU is ahead of the UK with developments, with its new Product Liability Directive (the new PLD) having come into force on 9 December 2024. Member States will have to implement changes set out in the new PLD by December 2026, although it will only apply to products placed on the market after that date.
The new PLD extends the scope of the definition of ‘product’ to encompass software, including updates, AI, digital manufacturing and digital services.
The change which is likely to cause most angst to insurers and defendants is the new burden of proof framework which may be shifted onto defendants. Under the new EU directive, a product will be deemed presumptively defective if the manufacturer fails to comply with the obligation to disclose information, the product does not comply with mandatory safety requirements or damage is caused by an obvious product malfunction. A national court must presume defectiveness, whether in liability or causation, where the claimant faces excessive difficulties due to technical or scientific complexity or where the claimant demonstrates that it is likely that the product is defective or that there is a causal link between the defectiveness and the damage, or both.
This also applies to causation – this will be presumed where it has been established that the product is defective and the damage caused is of a kind typically consistent with the defect in question.
The limitation period (currently 10 years) is also extended up to 25 years for personal injury claims where there is latent development of symptoms.
There is currently a £200 minimum threshold for property damage claims under the CPA in the UK which mirrored the the old product liability directive. This has been removed in the new directive.
There are wider disclosure obligations on defendants, and the definition of damage includes medically recognised damage to psychological health and the loss or corruption of data.
What has the UK been doing?
The Office for Product Safety & Standards (the OPSS) launched a Product Safety Review (PSR) back in 2019, including a call for evidence in March 2021. In November 2021, the Government responded to that call for evidence. This led to a full public consultation which was launched in August 2023. The main themes which came out of that consultation caused no real surprises. There was support for safer online shopping, a dynamic approach to be applied to emerging hazards and products (effectively, that product liability law should be more responsive), better use of data to identify product safety risks and digital labelling.
The UK Government then announced the Product Regulation and Metrology Bill in the King’s Speech on 17 July 2024. This Bill received Royal Assent on 21 July 2025 and became the Product Regulation and Metrology Act. The Act is limited in content and does not seek to make any dramatic changes to the current regulatory aspects of product safety. It does not deal with the issue of product liability. However, what the Bill does do is allow for regulations to be made in respect of product law in the UK.
The latest position
The UK Law Commission has announced a project to review the law relating to liability for defective products.
The project will look at challenges in the operation of the current product liability regime to establish what reform of legislation might be needed to deal with the new and emerging technologies surrounding the manufacture and sale of products. It needs to establish if the UK’s product liability regime is fit for purpose.
The announcement states that the project will start by determining its scope of work and agree the terms of reference for the project with the Government. Further details of the scope of the project will be provided in due course.
We will watch this space. We are mindful that legislative attempts to revisit product safety over the past 5 years, as outlined earlier, have not brought about wholesale change so it remains to be seen what the outcome of this project will be. Whether UK law extends to mirror, and encompass, the wide-ranging provisions in the EU Product Liability Directive remains to be seen but we expect that the ultimate outcome of this work will be an extension to the scope of legislation, and therefore increased potential liability for Product Liability insurers and their policyholders.
The Law Commission has indicated that it is interested in hearing from stakeholders with views about what the project should focus on and issues with the current product liability regime. Views can be submitted to productliability@lawcommission.gov.uk.
Insurers, manufacturers and suppliers of products may well have views that they wish to share, and we would encourage you to do so.
Find out how our Insurance solicitors can help you prepare for potential changes in product liability law.
