The International Consumer Product Health & Safety Organisation's ('ICPHSO') 2023 International Symposium was kindly hosted by IKEA in its birthplace – Älmhult. Attending the symposium and touring the IKEA test labs and museum gave us insight into the important elements of product safety beyond the law: design, innovation and demand.
In a year that already brought us the new EU GPSR and the UK's Product Safety Review, we've taken time to reflect and below we have outlined some key legislative developments since the symposium, followed by the key themes and learnings (both legal and practical) from the speakers.
Key legislative developments since the symposium
Toys Proposal:
A key element of this proposal for a new regulation is the introduction of a digital product passport. The view at the symposium was generally positive, suggesting regulations like these give everyone the same preconditions and levels the playing field, allowing customers to more easily compare and choose.
But there were concerns. A leading toy manufacturer said though they could be a valuable concept they should not be rushed, and proprietary information must be protected. They raised a key question: do consumers really need the same information that regulators do? A question that is also relevant to a range of other concepts, including the current proposals for the publication of information regarding green claims.
Since the symposium, the Internal Market and Consumer Protection committee published a draft report with amendments to the proposal. Specifically, they have noted that the passport "should be organised in different sections with different access rights for market surveillance authorities and consumers, since sensitive commercial information and trade secrets should be protected". Hopefully this means concerns about proprietary information will be borne in mind for any future categories of products requiring a digital product passport.
Various other amendments have been suggested, some simply to ensure alignment with the new EU GPSR. A key change is the removal of the wording regarding psychological, mental health, well-being, and cognitive development of children, which would have required these elements to be specifically considered in attaining safety. A justification for this removal is that it is unlikely authorities will be able to consistently assess the impact of a toy on these aspects.
The committee have also suggested longer transition periods, stating that industry needs more time to prepare. There is currently an indicative first plenary sitting date on 11 March 2024, which is when the proposal will be considered by Parliament.
Right to Repair Proposal
On 22 November 2023, the European Council adopted its negotiating mandate on the proposed Directive, and a first meeting with Parliament is scheduled for 7 December. Key points of the mandate are:
- A longer transposition period.
- To establish one single European Online Platform as a 'matchmaker' between consumers and repairers, instead of one in each member state.
- To maintain customer choice: instead of repairs always being required, they will be able to choose between repair and replacement.
- Where repair is undertaken, the liability period of the seller will be extended by 6 months from the moment the product is brought into conformity. Member states can prolong this period.
For more background information and details, read our previous insight on Right to Repair here.
Harmonisation and how the UK fits in
While we prefer a tsunami analogy, we were particularly taken by the H&M Group Compliance Manager's description that "We are feeling sometimes like we are sitting in a popcorn machine, because regulation is popping everywhere."
Since COVID, horizon scanning and staying on top of regulatory change has been one of the biggest challenges business face. H&M reiterated how hard it was to keep track of how to stay compliant across different jurisdictions.
This stood out to us as we heard the UK's Office for Product Safety Standards ('OPSS') describe the reasoning behind the UK's product safety review. The consultation, which closed in October, included proposals that could result in extensive changes to the UK regime. OPSS commented that some people think the legislation is fine and nothing should be done, but "if there are 2,000 pages we can simplify". While there is no doubt things can be simplified, given the value that businesses place on harmonisation, it raised questions as to whether an upending of the regime in the name of simplification could lead to businesses struggling to comply, despite already having safe products.
Ongoing problem: Lithium-ion batteries and sustainability
Batteries, specifically lithium-ion, continue to be a safety concern and were repeatedly brought up at ICPHSO as a key safety issue:
- Regulators: Attendees from the Australian Competition and Consumer Commission, OPSS and the Chair of the US Consumer Product Safety Commission all separately mentioned batteries/lithium-ion batteries as a key risk. OPSS mentioned this in the context of e-bikes and e-scooters, noting they are also very high on the agenda in terms of UK public priority because of the net zero transition.
- Industry: Product Safety Manager at Google flagged the challenges lithium-ion batteries face in relation to right to repair obligations. Polymer battery technology, the leading technology, has flexible and compliant design – making it hard to work with in manufacture and repair. The concern was that it is hard to communicate risk and there has been instances of user and repairer induced damage. With e-cigarettes and the Samsung 7, batteries, space limitation, and the user's ability to manipulate the device all played a part in the resulting safety issues.
- User interaction: This aspect was reiterated when hearing from a panel discussing lithium-ion battery safety. When products are in the hands of consumers there is a risk, as issues can arise from how the user interacts with them (e.g. the batteries in e-bikes/scooters being close to the ground). It was noted that people are even modifying products watching 'how to' videos, subsequently raising the question: how can safety be assured where consumers can self-repair, replace, and modify?
Looking forward
Balancing the safety and sustainability of innovative products is a challenge. Throughout the symposium, sustainability was discussed almost as much as safety. The UK's OPSS' scope means they can work holistically, caring about both safety and the environment, and that "as a government we're about a transition to net zero…the sustainability message really resonates with us". However, businesses made it clear that harmonisation was again needed. It takes a lot to achieve circularity, including regulators harmonising laws and, more than anything else, they actually have to work! After a jam packed 2023, next year looks like it has just as much popcorn to keep us all on full alert.
If you would like to discuss any points raised in this article, or think the new product safety proposals may affect your business, please contact the authors below or your usual DWF contact.
Please note this article also had contribution from Kirsty Poots.
