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United Kingdom: Progress of UK product safety – Soon to be fir for the 21st century?

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In brief

The UK government has set out its plans to explore changes to the UK’s product safety and product liability laws (Review). The Review, which has been commenced by the Office for Product Safety and Standards (OPSS, the UK government’s product safety body which was established in 2018) and includes the opening of a public call for evidence, is intended to ensure that the laws are “fit for the 21st century.” The Review specifically focuses on four key questions on whether the UK’s product regulatory framework:

  1. adequately protects consumers from unsafe goods
  2. is sufficiently simple to follow and flexible enough to be able to take account of new risks and opportunities, so it delivers both safe outcomes and supports business growth and innovation
  3. can respond quickly to new and emerging threats and opportunities for product safety, including digital technologies and new models of supply
  4. supports both regulators and business to be open and transparent about product safety so consumers can make informed decisions

This Review is another step in a much broader ongoing review and enhancement of product related laws, following on from the publication of recommendations by the UK government’s Working Group on Product Recalls and Safety (with two partners from Baker McKenzie, John Leadley and Kate Corby, as members), which focused on developing options to improve the UK’s system of product recalls and safety.

The Review’s public call for evidence will remain open for 12 weeks, closing on Thursday 3 June, after which the government is expected to prepare a summary of responses and options for reform that could have very significant implications for the legal regime to be observed in the UK, particularly in respect of new and emerging technologies.

In depth

What does the Review cover?

The Review will explore changes to product safety and product liability laws to ensure they are fit for rapidly advancing innovations, such as new consumer products and technologies such as artificial intelligence, connected devices, 3D printing and for other future developments. The Review will focus on the safety and liability of products rather than protecting consumers against unfair or misleading trading practices and only deals with regulations within the remit of the OPSS so does not cover products that are regulated separately (such as medical or healthcare products). There are, however, a significant number of laws listed as being in scope of the Review including the Consumer Protection Act 1987 and the General Product Safety Regulations 2005 and a number of other cross-cutting regulations and product-specific regulations. In updating the product safety and product liability laws, the government will also consider how our use and regulation of products fits in with the UK target to be net zero by 2050.

The OPSS’s call for evidence is organised by 25 questions, divided by five key areas:

  1. product design, manufacture and placing on the market
  2. new models of supply (with a particular focus on e-commerce, which has significantly increased with the COVID-19 pandemic)
  3. new products and product lifecycles (for example, artificial intelligence and the internet of things)
  4. enforcement considerations (particularly in the context of internet enabled devices, artificial intelligence and 3D printing, which can complicate the attribution of liability)
  5. a diverse and inclusive product safety framework

The call for evidence seeks views from individuals, businesses and organisations that interact with all aspects of product safety and product liability such as manufacturers, trade associations, consumers and consumer organisations.

Why should industry care about this Review? 

The timing of the Review’s announcement, shortly after the expiration of the UK’s transition period out of the EU, is certainly notable, in particular given the slow speed with which the EU’s own similar review has been progressing. The post-Brexit UK now has the opportunity to create an innovative products regime that is fit for purpose in today’s world. The establishment of a regime that recognises the issues at the forefront of many companies’ agendas, such as the achievement of net zero and the fight to meet competition by developing products in line with ever changing technological advancements (e.g. from the internet of things to smart devices and artificial intelligence), could result in the UK gaining a reputation as a market leader in this area, attracting innovation, investment and the attention of neighbouring countries, as they too look to pave the way for 21st century-ready product safety laws.

The way in which e-commerce has, for a number of decades, revolutionised and disrupted how products are bought, sold and distributed, has led to increasing uncertainty of the roles businesses in the supply chain must adopt, and equally what obligations and liability they are subjected to. The global pandemic has rapidly accelerated the growth of e-commerce, but the lack of clear regulation in this space poses challenges for businesses who seek to harness opportunities whilst ensuring compliance with an opaque legal regime. Clarity of the UK’s approach to product safety and product liability in this area, as the Review will consider, should be welcomed.

Moreover, the Review’s consideration of the tools available to regulators, and their duties, powers and obligations, and its effort to ensure that they are consistent and appropriate for working with the different business models and complex supply chains many businesses now operate, could lead to interesting and even potentially radical changes.  Any reform of the way in which the UK’s product safety and product liability regime is regulated means that businesses must be aware of the part they have to play in securing and protecting product safety for consumers, and speak up while they have the opportunity to do so.

Key Dates

  • 11 March 2021: Business Minister Paul Scully announced plans to modernise UK product safety laws and the call for evidence was opened.
  • 3 June 2021: The call for evidence closes.
  • 26 August 2021: Date by which the UK government intends to have published a summary of responses and evidence paper.
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Author

Kate Corby is a partner in Baker McKenzie’s Dispute Resolution team in London. Kate has substantial experience of representing clients in complex litigation and arbitration, with a focus on construction and engineering disputes. She also has significant experience in advising on product liability, safety and regulatory compliance. Kate is a member of the firm's EMEA Dispute Resolution Steering Committee, and various of the firm's diversity related working groups at a local and global level. Kate is ranked as a Next Generation Partner in Legal 500 UK, noted for her "strategic thinking”, as being “excellent, smart, focused and very adaptable” and "highly regarded". Kate has also been ranked in Chambers UK and described as an adviser "who has impressed both clients and peers. Sources say: "She has great business acumen in addition to great legal knowledge. This was a tremendous help in maintaining and improving our relationships with our strategic partners in a very delicate moment."

Author

Jo is a senior associate in Baker McKenzie's Dispute Resolution team in London. Jo advises clients in a wide range of industries on complex commercial disputes and investigations. She also regularly provides specialist product safety and regulatory compliance advice and acts for clients in product liability disputes. One of Jo's other areas of specialism is advising clients on a wide range of regulatory, public and administrative law issues, including judicial review, consultations, freedom of information and public procurement. Jo's practice often involves drawing on crisis management experience to help clients protect their reputations and shareholder value when dealing with urgent, time pressured issues and/or intense public scrutiny. Jo was ranked as a Next Generation Lawyer in the Legal 500 Product liability: defendant category in 2017. Jo has participated in the UK Government's Working Group on product safety and recalls and has assisted with the development of the Government's training programme for Trading Standards Officers on the new UK Code of Practice for Product Recalls.

Author

Lauren is an associate in the Baker McKenzie Dispute Resolution team in London. Lauren maintains a diverse range of matters throughout the department's practice areas, spanning commercial litigation to investigations and arbitration cases. During her training contract, Lauren spent three months on secondment in the Dispute Resolution department of the Firm's Hong Kong office, primarily advising clients in respect of compliance and investigations in the Asia-Pacific region.

Author

Katia is an associate in the Baker McKenzie Dispute Resolution team, based in London. Katia has worked on a range of matters including commercial litigation, international arbitration and general advisory work. Katia has experience in both commercial arbitration and investment treaty disputes, with experience acting for parties in disputes under DIFC-LCIA, ICC, ICSID and UNCITRAL Arbitration Rules. Katia is qualified in England & Wales and admitted to the Supreme Court of NSW, Australia. During her training, Katia was seconded to the Chancery Division of the High Court for three months as a Judicial Assistant. Katia previously worked at the London Court of International Arbitration (LCIA) as a Casework Assistant and as Assistant to the Director General, where she had extensive first hand-experience of LCIA administered disputes.

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