Preparing for the EU’s new General Product Safety Regulation in 2024

The European Union's legislative framework for product safety is undergoing a substantial upgrade. The General Product Safety Regulation (EU) 2023/988 (GPSR) will replace the two-decade-old General Product Safety Directive 2001/95/EC (GPSD) and takes effect on 13 December 2024. This comprehensive overhaul reflects evolving market dynamics, particularly the rise of digital products and e-commerce. As businesses across sectors brace for the new regulatory requirements, a clear understanding of the key provisions is crucial.

It is important to emphasise that the GPSR will not apply to the UK. For the time being, the UK market will continue to be governed by the existing general product safety rules that were based on the EU GPSD. However, UK manufacturers or distributors placing products on the EU market will be subject to the enhanced compliance requirements under the GPSR.

The Rationale Behind the GPSR

The world of consumer products has changed dramatically since the GPSD came into force in 2004. Digital technologies, internet-enabled products, and the proliferation of global e-commerce platforms have created new safety challenges. The GPSR responds to these shifts, aiming to tighten safety standards while making regulations more adaptable to innovations like artificial intelligence and the Internet of Things. Unlike the GPSD, which was a directive requiring national transposition into domestic laws, the GPSR is a regulation with direct effect on EU Member States, removing the need for individual implementation measures. This streamlined approach ensures a more uniform application of safety standards across the EU.

The regulation seeks to fill gaps left by the GPSD and provides a robust legal framework to ensure products circulating in the European market, including imports from non-EU countries, are safe. This emphasis on consumer protection also aligns with the EU’s broader commitment to maintaining high safety standards in the digital age.

Key Updates Under the GPSR

Coverage of New Technologies

One of the standout features of the GPSR is its broader scope. The regulation now explicitly addresses safety concerns associated with software updates, artificial intelligence, and connected devices. These products must remain safe throughout their lifespan, considering the potential impact of updates on their functionality and security. Businesses must be vigilant in assessing risks not just at the point of sale but as products continue to evolve digitally.

New Rules for E-commerce Platforms

With a booming online marketplace, the GPSR places new responsibilities on digital platforms and other e-commerce operators. These platforms must ensure that products offered by third-party sellers adhere to EU safety standards, particularly when items come from non-EU manufacturers. This marks a significant change, as online marketplaces will be more accountable for monitoring and acting against potentially unsafe products. It is a move designed to protect consumers but one that will likely increase compliance costs for these platforms.

Enhanced Market Surveillance and Recall Mechanisms

Market surveillance authorities are granted expanded powers, enabling more efficient identification and removal of dangerous products. This includes the right to purchase products anonymously for testing (mystery shopping) and to initiate swift actions such as product recalls. Businesses must be prepared to handle recalls effectively and provide all necessary product information to authorities. A non-compliant product could be flagged and removed far more quickly than under the previous directive.

Clearer Responsibilities Across the Supply Chain

The GPSR clarifies the roles of all economic operators, including manufacturers, importers, and distributors. Importantly, non-EU manufacturers will need to appoint a 'responsible person' within the EU responsible for ensuring product compliance. This shift ensures accountability at every step of the supply chain. For distributors and retailers, the regulation mandates the verification of product documentation to guarantee adherence to safety standards.

Emphasis on Product Traceability

Traceability is central to the GPSR. Economic operators must implement systems that allow for precise identification of the product's origin and its journey through the supply chain. In the case of a safety incident, this traceability will aid in effective product recalls. Businesses are advised to invest in better record-keeping and supply chain transparency to meet these demands.

Risk Analysis and Enhanced Labelling Obligations

One of the driving principles behind the GPSR is to enhance consumer protection by ensuring that products are safe when they are 'placed on the market' and further, to implement traceability mechanisms to ensure that those products remain safe throughout their lifespan.

Ongoing risk analysis and technical documentation will be required for all products. For example, the GPSR requires manufactures to conduct and document a risk analysis coupled with technical documentation for every product. The scope of this exercise will vary depending on the product classification but will generally require manufacturers to provide a product description and assessment of the essential characteristics relevant to product safety. This responsibility does not end once the product is placed on the market. Rather, manufacturers are required to keep technical files up to date through periodic risk analysis. Similar regulatory obligations are mandated for importers also.

Enhanced labelling obligations are a core feature under the GPSR. For instance, the name, address, and electronic address of the economic operator should be listed on the product or its packaging or labelling. If the economic operator is not based in the EU, then a 'responsible person' for regulatory compliance should be appointed and that entity must be based in the EU. In addition, products shall bear a serial number (or equivalent), which is easily visible and legible for consumers.

Implications for Businesses

Compliance with the GPSR will be far from a box-ticking exercise. The emphasis on digital safety, in particular, will require significant investment and strategic adjustments for many companies. Businesses dealing in AI-driven products or those heavily reliant on online sales should be especially alert to these changes.

Getting Ready for the GPSR: Next Steps

The GPSR is a bold step forwards, reflecting the realities of a tech-driven and globalised market. As noted above, the GPSR will apply to products placed on the EU market only. The UK has not transposed the GPSR into national law (although new regulation is expected to be forthcoming). However, UK companies (or businesses with a UK entity) seeking to export products to the EU must either establish a corporate entity in the EU that is staffed with appropriate expertise to discharge the regulatory oversight and compliance functions or alternatively, appoint the services of an authorised representative service provider capable of providing 'responsible person' oversight.

With 13 December 2024 fast approaching, businesses should take proactive steps to ensure compliance with the new rules. While compliance may seem daunting, businesses that embrace this change can strengthen their operations and foster greater consumer confidence.

Brodies is already working with clients to prepare for the new regulation coming into force. For more information on the GPSR and how your business can prepare for the new rules coming into effect or EU law generally, please contact Grant Strachan or your usual Brodies contact.