Product safety measures receive Royal Assent, but further certainty needed

Zoe Betts, health and safety expert at Pinsent Masons, was commenting after the Product Regulation and Metrology Act received Royal Assent.

The new legislation is intended to “preserve the UK’s status as a global leader in product regulation, supporting businesses and protecting consumers”. The Act contains extensive powers enabling the secretary of state to make regulations to reduce or mitigate the risks presented by products. Products posing potential risks to health, safety or property, or those susceptive to interference – like electromagnetic disturbances – are within scope. The Act also empowers the secretary of state to enforce compliance, and issue civil and criminal penalties.

The scope of executive authority granted by the Act has been subject to controversy. However, despite intense debate and attempted amendment, it remains largely intact in a bid to ensure the system can adapt quickly to changing and emerging risks and circumstances. The government has confirmed its intention to ensure any intervention is proportionate and risk based.

The Act also enables alignment with EU legislation. This has been another area of controversy although during the Act’s passage through parliament, the government noted that it would not automatically apply EU legislation and would instead make a judgement on a case by case basis about whether applying EU law to Great Britain was the right thing to do.

Betts said: “Whilst the aims of the legislation appear sensible, concerns for business will remain. The government has sought to assuage some of those concerns, including by confirming industry and expert consultation and collaboration will be central to the development of any future decision to regulate. The Act also requires parliament to approve draft regulations before specific, but crucially not all, regulatory changes can be made. The government has confirmed the affirmative procedure will apply to any secondary legislation that creates or widens the scope of a criminal offence.”

As required by the Act, the secretary of state has published an overview of the product risk identification and assessment process. The updated Product Safety Code of Conduct, sets out in one place the legislative and non-legislative provisions relating to product safety in the UK. It also gives more detail on how the government intends to use the powers in the act. Its annex, titled ‘Risk identification, assessment, and response’, explains the process of identifying and assessing risks, as well as consideration of regulatory and non-regulatory responses.

The secretary of state uses a range of methods to identify and assess risk. This includes risk profiling and examination of information about incidents recorded on the product safety database and other relevant datasets. Risk will also be assessed using intelligence from market surveillance authorities and other regulators, including international regulators where appropriate, as well as evidence presented by industry groups and individual businesses. Evidence received through engagement with consumer groups and other expert product safety groups, media articles and investigations, and parliamentary debates and engagement as well as letters from members of parliament on behalf of constituents will also be considered.

Where a product is identified as presenting a potential or actual risk, the secretary of state “will assess the possible risk to ensure proportionate, effective action is taken where necessary, at the right point and by the right actor in the supply chain”.  Collaboration between the government, product safety experts and regulators will precede any consequent action to determine the most appropriate intervention, whether legislative or non-legislative.  This might include using existing regulations to take enforcement action to either ensure manufacturers modify a product to minimise risks or remove the product from the market altogether or producing and distributing consumer safety information or additional guidance for businesses to support them into compliance. 

The code of conduct will be kept under review and updated as appropriate to reflect any future changes or updates to the safeguards.

For stakeholders, much will depend on the detail of secondary legislation introduced by the government under its new powers, but the government has confirmed that online marketplaces will be near the top of any new rules. Otherwise, whilst the code of conduct states that regulation “should be seen as a last resort”, it nevertheless puts forward an ambitious list of areas “for potential reform or further review”. These include EU divergence, digital labelling, machinery automation, 3D printing and augmented reality, as well as “the regulation of higher risk product sectors” and “introducing emergency derogation procedure”. Lithium-ion and button batteries are likely to be amongst government priorities for future regulation under the act.

Betts said: “While some issues have been addressed, consultation and collaboration do not guarantee industry concerns are actually taken into account, nor does a requirement for approval from parliament necessarily assuage when the sitting government holds a large majority. Industry needs certainty, which for some is still missing from the Act.”

On 31 July, the Law Commission also confirmed that it is to review the product current UK liability regime, as set out in the Consumer Protection Act 1987.  In publishing its review, the Law Commission noted that the current regime has “not kept pace” with developments, particularly in relation to emerging technologies. The scope of the review will be determined later this year. Stakeholders can contribute to this scoping exercise. 

There has been recent criticism that the regime in the UK is no longer fit for purpose, and that the divergence with the EU regime which came into force late last year creates difficulties and uncertainty for businesses. “It will be interesting to see if closer alignment is on the cards here too,” Betts said.