A product of reform: new rules for supply to EU enter force

The new EU General Product Safety Regulation 2023/988 (GPSR 2024) takes effect on 13 December 2024. A renewed, modern and detailed update to the General Product Safety Directive 2001/95/EC (GPSD 2001), the new Regulation serves as a “safety net” that catches and regulates the safety of consumer products absent other specific rules. 

Impact in the UK

Whilst UK manufacturers and distributors interacting with the EU market will be affected by GPSR 2024, it will not apply directly to the UK, which will instead remain subject to its own product safety regime including the similarly-named GPSR 2005 (its implementation of GPSD 2001). 

The extent of further post-Brexit regulatory divergence between the EU and UK is unknown, though alignment appears more likely at present, with a recent Product Safety Review consultation outcome indicating planned reform to reflect modern challenges (a shared objective of GPSR 2024) and the new UK Government signalling an impending “reset” of EU relations. 

The safety of products

As prior, GPSR 2024 requires that all products are safe for consumers, with the meaning of “safe” being a key consideration. Previously, the safety of a product would be determined by taking account of its characteristics, effect on other products, presentation (including labelling), and the categories of consumers at risk when using the product. 

Those are now expanded to include the following additional criteria: risk assessment on how the product might affect different consumer categories (according to age, disability, or gender), the product’s appearance resulting in a not-intended use, and, reflecting a modern era of integrated digital products; any relevant cybersecurity features to guard against malware (and similar) and the product’s evolving, learning and predictive performance.  

Product marking 

The marking of products to provide mandatory information for identification and certification purposes is commonplace. GPSR 2024 requires that products bear a type, batch or serial number or other identifying element which is easily visible and legible for consumers. Where that is not possible (considering the size or nature of the product), the required information should instead be provided on the packaging or in a document accompanying the product. A batch number, identifying the manufacturing date and location and the product model / variation can prove crucial when safety issues arise, in order to identify, isolate and recall potentially affected products on the market. 

Labelling

Labelling requirements will also be enhanced to improve traceability and consumer information, to require the manufacturer’s name / registered trademark, age suitability of the product for children (if applicable) and manufacturer’s postal and electronic address in addition to product reference / batch number and applicable warnings. The addition of an electronic address to labelling sits alongside requirements for manufacturers to offer communication channels for consumers to inform of product safety issues and submit complaints by way of a section of a website, electronic address, or telephone address, provided that is accessible to people with disabilities. 

Expansion of administrative requirements

Harmonised products, being those subject to specific regulations and required to be CE-Marked (e.g. toys and medical devices), have long been subject to greater administrative and technical burden in relation to products on the EU market. GPSR 2024 substantively extends those requirements to all other products, to include (i)  requirement to undertake a pre-market risk assessment, (ii) retention of a continuously updated technical file including (among other things) the product description, characteristics and risk mitigation steps, and (iii) where the manufacturer is not present in the EU (for instance, the UK), the appointment of a Responsible Person in the EU for compliance tasks and as a point of contact. 

The role of E-Commerce platforms: a quasi regulator?

GPSR 2024 imposes greater responsibility on platforms such as Amazon to ensure that products sold on the platform meet safety requirements and to co-operate with regulators (in some instances, having only 2-3 working days to do so). The product listing / offer page on the platform must also include the manufacturer’s details, responsible person, and information akin to that required on the product label itself (as above). It is therefore expected that online platforms will enhance information requirements before listing in order to comply with these enhanced requirements and tightly monitor their compliance for listings to remain live on the platform. 

Accident / Recall Reporting

It will now be mandatory for manufacturers or their Responsible Person to report product accidents causing injury and recalls to EU Safety Gate without delay, and online marketplaces must do the same. Product recalls will also be subject to stricter requirements to advertise recalls effectively and widely, avoid certain terms in recall notices (particularly those that may “soften” or minimise the perceived risk thereof, i.e. “in rare situations…”) and offer remedies including the refund of at least the price paid by the consumer (without deduction for use or age). 

Class action litigation 

Class action or group litigation in relation to products is not new. However, any breach of GPSR 2024 will now be included within the categories of claim that may be brought under the EU Representative Actions Directive. As such, the likelihood of such claims arising is enhanced by this broadened scope, coupled with likely enhanced consumer awareness of product issues due to Safety Gate reporting, as above.

2025 and beyond

As with any new regulation, the market and wider impact will be measured in months and years as businesses seek to comply with the new requirements and, perhaps crucially, those are tested and enforced, with penalties set at national level. Whilst there will be divergence between and outside EU Member States, international co-operation between regulators is expected. Of course, that is just one string to the bow of GPSR: the other being the consumers themselves, perhaps emboldened by the wider availability of class-action litigation, the safety of products may prove paramount to litigation risk.