The European Commission published on 30 June 2021 its proposals for a revision of the 20-year old General Product Safety Directive 2001/95/EC (GPSD).
The GPSD imposes general safety requirements on all consumer products placed on the EU market to the extent that safety requirements are not already imposed by specific EU harmonised legislation (e.g. the CE marking directives and regulations in relation to medicines, medical devices, children toys, cosmetics, chemicals, food).
The proposed framework – now in the form of a regulation which is directly applicable in all 27 EU Member States – aims at adapting product safety to the digital economy and at the same time imposes strict measures to protect consumers from dangerous and deceptive products. These measures not only impact product manufacturers but also supply chain actors and online marketplaces.
Key proposals are:
- Online sales: specific obligations are imposed on online marketplaces as intermediaries between traders and consumers. For example, they’ll need to appoint a single point of contact which interacts with Member States’ authorities on product safety issues and is registered with the Safety Gate portal in order to swiftly follow-up on reported safety notices. E-commerce platforms may need to re-design or re-organise their online interface to provide for certain safety relevant information. All this will need to be consistent with the proposed Digital Services Act.
- Manufacturers: the main responsibility and liability to protect health and safety of consumers lays with the manufacturer. The proposed regulation provides for penalties of up to 4% of annual turnover for non-compliance. Manufacturers will now be expected to draw up a so-called Technical Documentation which includes, for example, a general description of the product, its essential properties relevant for assessing the product's safety and an analysis of the possible risks. The concept of technical documentation is known for CE marked products but not for general consumer products. Further, manufacturers may also need to comply with newly developed standards to demonstrate that the safety of their products.
- Supply chain actors: all across the supply chain, economic operators will have responsibilities to ensure product safety from checking if the manufacturer/importer has all necessary documents in place (due diligence) to ensuring product traceability and putting corrective measures (e.g. recalls) in place if needed. One special category of economic operators is the so-called ‘responsible person’ which is known so far only in highly regulated sectors (e.g. cosmetics) and is essentially responsible for any legal or compliance matter for products placed on the EU market by a manufacturer established outside the EU. So in the case of direct imports from third countries, the manufacturer will now need to appoint a responsible person based in the EU.
- Product recall: specific provisions are proposed to improve the framework for product recalls, for example regarding mandatory incident reports, content of product recall notices, remedies offered. This should be read together with the ongoing revision of the EU product liability framework.
- New technologies and artificial intelligence: the proposed framework is technology neutral and will apply to new/smart technologies and their associated risk (e.g. cybersecurity; software updates) unless there is specific sector legislation covering these aspects such as the proposed AI Regulation.
Businesses are invited to provide input on the proposed product safety rules before 1 September 2021 and following this stakeholders feedback, the proposal will go through the legislative process with both the European Parliament and Council deciding on the ultimate new rules.