EU general product safety legislation set for an overhaul

On 23 May 2023, Regulation (EU) 2023/988 on general product safety (the “GPSR”) was published in the Official Journal of the European Union. The GPSR will, among other things, repeal Directive 87/357/EEC (the so-called “EU Food Imitation Safety Directive”) and Directive 2001/95/EC on general product safety (the “GPSD”).
 
The GPSR is currently set to enter into force on the 20th day following the date of its publication (i.e. 12 June 2023) and will apply from 13 December 2024. However, as part of a transition period, the GPSR will not prevent the sale of products covered by, and compliant with, the GPSD, that were placed on the EU market before 13 December 2024.
 
As regards scope, the GPSR applies: 

• to products that are placed or made available on the EU market (whether new, used, repaired or reconditioned), including through online selling, insofar as there are no specific EU provisions with the same objective regulating the safety of such products; 
• with respect to products which are subject to specific safety requirements imposed by EU provisions, only to those aspects and risks or categories of risks which are not covered by those requirements; and
• without prejudice to the rules laid down by EU law on consumer protection.

The GPSR does not apply to a number of specific product categories, including: medicinal products for human or veterinary use; food and feed (except for materials and articles intended to come into contact with food insofar as risks are concerned that are not covered by EU food-specific legislation); living plants and animals, genetically modified organisms and genetically modified microorganisms in contained use, as well as products of plants and animals relating directly to their future reproduction; animal by-products and derived products; plant protection products; antiques; etc. 

In summary, the main provisions of the GPSR concern the following:

• with reference to developments in digital technology, the introduction of new factors/criteria that are relevant to the risk assessment of a product before placing such product on the EU market (the list of factors under the GPSR is not intended to be exhaustive);
• introduction of proportionate obligations concerning the safety of products covered by the GPSR for all economic operators involved in the supply and distribution chain, based on their role in such route to market;
• introduction of specific obligations for providers of online marketplaces. By way of example, such providers are required to designate a single point of contact for consumers, to allow direct communications with them on product safety issues, which can then be redirected to the proper service unit of an online marketplace;
• appointment of a responsible economic operator established in the EU, acting as a representative for market surveillance authorities and entrusted with specific tasks (e.g. regularly check compliance with the technical documentation, product and manufacturer information, instruction and safety information) to ensure that products are safe;
• strengthening the powers of market surveillance authorities (e.g. they may require the removal of content referring to dangerous products from an online interface or to disable access to it or to display an explicit warning to end users when they access an online interface);
• cooperation from all economic operators and providers of online marketplaces with market surveillance authorities regarding actions which could eliminate or mitigate risks that are presented by products made available on the market; 
• use of a EU rapid alert system, i.e. Safety Gate, which comprises: (i) a rapid alert system on dangerous products covered by the GPSR whereby national authorities and the Commission can exchange information on such products and related measures adopted (Safety Gate Rapid Alert System); (ii) a web portal to inform consumers of dangerous products and enable them to submit complaints to the Commission (Safety Gate Portal); and (iii) a web portal to enable economic operators and providers of online marketplaces to comply with their obligation to immediately inform authorities and consumers of dangerous products and accidents (Safety Business Gateway);
• improving the effectiveness of product recalls. By way of example, economic operators (and, where applicable, providers of online marketplaces) that collect their customers’ personal data shall make use of such data to inform consumers of recalls and safety warnings linked to products (which should clearly describe the risks) and offer consumers the possibility to provide separate contact details only for safety-related purposes in the context of product registration systems or customer loyalty programs. Moreover, in case of a product safety recall, economic operators shall offer consumers the choice between at least two of the following remedies: repair, replacement or adequate refund, without prejudice to the consumer’s right to damages under national law; and 
• international cooperation, including through systematic exchange of information related to product safety under the GPSR, between the Commission and competent authorities of third countries or international organizations to prevent the circulation of dangerous products on the market.

Moreover, under the GPSR, EU member States must lay down -and notify the Commission by 13 December 2024- the rules on penalties applicable in the event of violation of the GPSR’s provisions that impose obligations on economic operators and providers of online marketplaces, as well as all measures taken to ensure that said rules are implemented in accordance with national laws.

From a UK perspective, since the GPSR will come into force well after Brexit, the GPSR will not apply to products placed on the UK market. The UK’s general product safety regulatory framework remains based on the GPSD and subject to any further amendments that may be made in future. Practically, this means that businesses supplying products on both the UK and EU markets would be required to comply with two different sets of requirements.

For queries about the impact of implementation of the GPSR in each EU jurisdiction, and the UK, please do not hesitate to contact us.