Product liability and safety legislative refurb

The current legislation governing product safety is the General Product Safety Directive (GPSD), but its shortcomings, especially on tech, are evident.On 13 December 2024 the EU will be replacing the GPSD with the General Product Safety Regulation (GPSR), and the latest King’s Speech indicated it will be replaced in the UK by a Product Safety and Metrology Bill.Separately, EU Member States are rolling out a revised Product Liability Directive (PLD) which captures the provision of software, digital services and online marketplaces.

Why does it matter? 

The EU’s GPSR includes a variety of changes to update the GPSD, focusing on its deficiencies on product recalls and products on the digital markets: 

• the definitions of “product” and “safety” are being widened to include emerging digital technologies and cyber safety components of products
• obligations are imposed on digital marketplaces to try to prevent the sale of dangerous products and deal with the removal of products (including incident reporting and product recall) 
• risk assessments to be undertaken before placing a product on the EU market. 

A further element of the GPSR will be of particular interest to UK retailers: 

• a “responsible person” must be appointed in each member state products will be sold in, to be responsible for the safety of the product – including providing technical documentation and managing any safety risks suspected by the market surveillance authorities. 

Whilst figures or percentages on financial penalties were proposed, the GPSR instead refers to the penalties being “effective proportionate and dissuasive” with Member States being responsible for laying “down the rules on penalties applicable to infringements of this Regulation”. That Article also requires Member States to notify the Commission of those rules, so we will need to wait to see what those rules are and whether there is much disparity between them.

The UK Government acknowledges the shortcomings of the GPSD but has been slower than the EU at implementing new regulation. In August 2023 the government launched a consultation on product safety and standards, and on 17 July 2024 the King’s Speech announced a Product Safety and Metrology Bill, intended to target some of the same issues as the GPSR. 

That Bill will allow the UK to align with or depart from the developing EU regulation as it sees fit. Due to the Windsor Framework, Northern Ireland will be subject to the GSPR regardless, so if the UK pursues alignment, there will be a consistent standard applicable to UK-wide businesses. 

On product liability, the EU has published two proposals to manage digital market risks:

• revisions to the Product Liability Directive (PLD)
• tackling harm caused by AI systems.

The PLD will replace “producer” with “manufacture” to encompass those providing software, digital services and online marketplace, significantly increasing the number of retailers that have to comply with product liability directives.

What action should you consider?

Review the GSPR and PLD to determine if your business will be caught by the extended definitions around digital services.

• If you sell to the EU, consider how you will be complying with the requirement to have a “responsible person” in each relevant member state.
• Consider the impact of increased regulatory expectations around digital services (eg risk assessments, incident reporting) to ensure you are in compliance.
• Ensure you have procedures in place in the event that a product recall is required, even in relation to digital products.

Explore Retail Compass Autumn 2024