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In the final countdown to the EU's new General Product safety Regulation, coming into force and in the middle of International Product Safety week, the International Consumer Product Health and Safety Organization (ICPHSO) recently held its Annual Meeting and Training Symposium at the home of the European Commission in Brussels, Belgium. The event brought together various stakeholders from the product safety space including global regulators, manufacturers, retailers and lawyers.
Vulnerable People, Vulnerable Products
Products carrying particular risks were identified as a key focus area by both the European Commission and the UK's Office for Product Safety Standards (the OPSS). One such product category, which stood out as receiving particular attention, was lithium-ion batteries. The prevalence of this risk was highlighted when such products were said to have been the most significant source of product-related deaths in the last year.
The risks associated with these products have been increasingly flagged in previous years, including being mentioned in ICPHSO's 2023 event. The products are typically found in e-bikes and e-scooters, and present fire risks to consumers when over-charged, short-circuited, submerged in water or otherwise damaged. The tendency for consumers to leave e-bikes/scooters on charge in entrances and exits of their home overnight increases the risk of serious harm to consumers. Similarly, there is a growing trend to modify e-bikes and scooters which compromises any in-built safety features. We also heard about a new, supply-chain-related challenge this year, where carriers are reticent to transport lithium-ion batteries when recalled by retailers/manufacturers due to the risk it poses to the carrier when in transit. This presents new obstacles to recalling the products from the market and demonstrates the impact such risks have for different stakeholders in the supply chain.
A new area of focus was also introduced on the topic of risk vulnerabilities, this time in the context of consumers. The OPSS highlighted the issues presented by products being safety tested on only select members of society, meaning the vulnerabilities of other consumers are not accounted for when a product is manufactured to be safe, and these consumers are therefore at risk. Such consumer groups typically include children and the elderly but can also include women. The topic of consumer vulnerabilities was shared by the European Commission, who raised a similar point on consumers all having unique vulnerabilities which had to be accounted for by manufacturers.
Data was identified by both the European Commission and the OPSS as being a key tool to build more inclusive standards which account for vulnerable consumers, as well as informing better enforcement decisions. However, the challenge of getting the right amount of data was noted - too much data convolutes decision making and too little data can skew the focus.
Online Marketplaces
We heard from regulators across jurisdictions, including Australia, Canada, the UK and the EU, that online marketplaces continue to be a clear focus area for nearly all of them.
It was highlighted that there is still a fundamental disconnect between the overarching consumer-assumption that buying from online marketplaces is akin to purchases made from traditional, reputable retailers, and the reality of un-monitored and unknown third-party sellers selling products on the marketplace which have not been adequately certified and/or safety tested. The danger with this presumption is that many consumers are under a false sense of security, as to the safety of products they purchase, and assuming that because they made the purchase on a well-known website, the product will be safe for use.
To illustrate this point, the UK consumer protection agency 'Which?' outlined a study they conducted recently, whereby they posed as a third-party seller on various online marketplaces and attempted to list products for sale which had been found to be illegal. Concerningly, all the online marketplaces they targeted allowed the products to be listed, even when the listing was made increasingly more obvious to be illegal. Even when the listing was taken down, 'Which?' found they could still re-list the product.
Consumer perception and the varying quality of some products listed on online marketplaces mean they are likely to continue to be a key focus area for regulators. We can expect to see an uptick in enforcement action and market-sweeps. Additionally, test purchases made by regulators were flagged as being likely to increase with a view to identifying the non-compliant products.
Harmonised approach
Many are raising concerns borne out of the challenges faced by sellers and businesses who want to comply with changing regulations, but struggle where regimes diverge.
One such example, in the context of ESG, is the Extended Producer Responsibility regime. This was flagged by an online marketplace provider as being an example of a regime, where despite the common principles, member state peculiarities mean cross-border sellers struggle to achieve compliance in all EU locations.
The practical impact of such challenges was said to result in some sellers deciding it was too difficult to launch products on the EU market, along with the need to comply with all diverging requirements, and instead they would look to launch on other markets. Global marketplaces witnessing this trend said it was the "EU consumers who ultimately lost out".
Aside from intra-EU divergence, with the EU General Product Safety Regulation 2023/988 (the GPSR) set to replace the current General Product Safety Directive (the GPSD) from 13 December 2024, and the potential for a new Product Regulation and Metrology Act in the UK, there's scope for even more divergent standards in product safety to occur between the UK and the EU, which have mostly been aligned to date. While to date politics have not permitted greater proximity for the relationship, the current draft Bill includes an "EU-harmonising" clause, which would imply a move towards greater alignment between EU and UK standards).
Traceability and Digital Labelling
The General Product Safety Regulation builds on the existing requirements for products to be accompanied by traceability information. Regulators flagged that "traceability is still worrying us authorities quite a lot". They noted there are still instances where the relevant traceability information is not included on products, meaning the effectiveness of recalls is then compromised. Traceability is something the introduction of the Ecodesign for Sustainable Products Regulation aims to redress and, in particular, the role of digital product passports which aims to consolidate the data from entire supply chain to form a single source of truth.
There was also a reminder that digital labelling by itself is not sufficient, and such labels can only be used when accompanying the hard copy documentation provided with products. This originates from the GPSR, which makes it clear that from 13 December 2024, safety information and instructions can only be made available in a digital format in addition to such information physically being on or accompanying the packaging.
Closing thoughts
ICPHSO 2024 brought together a variety of perspectives on new and emerging topics, as well as revisiting the importance of themes from the previous year. With the incoming GPSD in the EU, we look forward to seeing these topics develop and hearing more at the 2025 event, this time in the warmer climes of Orlando, Florida.
