ICHPSO Conference Features Many International Themes

The International Consumer Product Health and Safety Organization (ICPHSO) celebrated its 25th anniversary by holding its largest ever Annual Meeting and Training Symposium in Orlando, Florida from 18-23 February 2018. Attended by a varied host of over 800 of the world’s leading product safety experts from 18 countries, the meeting addressed the key product safety challenges for regulators, industry, consumers and other stakeholders alike.

Although there was a specific focus on new technology and the potential challenges a new generation of products may bring – widely recognised as the “hot topic” for product safety professionals globally – the panel sessions touched on a wide range of international issues, including: current trends in the ethics of product safety; how to safely market a product; how to respond to safety challenges caused by the increased use of social media; and an interactive product safety crisis simulation.

In a keynote address (PSL, 2/26/18), Acting CPSC Chairman, Ann Marie Buerkle, emphasised cooperation and collaboration: between regulators and industry; between industry and consumers; and between regulators internationally. This last point was evidenced practically and formalised by the signing (PSL, 2/26/18) of a trilateral Memorandum of Understanding (MoU) by the representatives of Health Canada, the Consumer Protection Federal Agency of the United Mexican States (PROFECO) and the CPSC.

The MoU is designed to facilitate better exchanges of information and regulatory cooperation among the three product safety organisations – including sharing best practices and improving the harmonisation and alignment of international product safety standards. Acting Chairman Buerkle stated that this MoU “is intended to memorialize cooperative efforts already underway, as well as to facilitate future joint activities” and “has produced substantive, tangible outcomes benefiting consumers in all of North America, since consumer products flow easily across our shared borders.”

Several sessions highlighted broader themes, relevant not just to North America, but also to Europe and countries across the world in the product safety sphere. Here, we consider some of those broader themes that were drawn out as part of the wider conversation at ICPHSO.

There was discussion of three areas that are in focus in Europe and that are expected to be of importance in the coming years: how to deal with safety issues where the risk only occurs later in time; the relationship between European regulatory authorities and manufacturers; and the impact of new technology on product safety.

Firstly, a number of panellists focused on how issues stemming from an unsafe product do not arise until long after the product has been used.

• By way of example, it has oft been argued that exposure to certain products or chemicals can trigger anxiety, however, damages are generally not permitted where there is no harm. In France, however, there has been a change that allows “anxiety damages” where someone is exposed to a hazardous substance, even if they do not suffer illness.

 

• This is significant and ties into a wider focus on the safety of chemical substances in Europe. Authorities are increasingly targeting chemical substances, and the result of this can be sudden prohibitions, limitations or regulations. This can make it difficult for manufacturers to plan their strategy, and it raises the question of how they should proactively think about how to change their products.

Secondly, relevant in Europe, but also to product safety stakeholders across the world, the relationship between authorities and manufacturers was discussed many times across the course of the conference.

• The new Goods Package (PSL, 1/1/18) proposal that is on the table in the EU may also impact on this “compliance vs safety” debate as it increases the focus on technical compliance even further. This proposal is a potential game-changer in the EU as it supplements a very robust regulatory regime, which has typically seen patchy enforcement, with a proposal that is designed to improve the enforcement of product regulation.

 

• This increased focus on enforcement is already being seen in specific Member States, for example in the UK. The introduction (PSL, 1/29/18) of the Office for Product Safety and Standards, expected to increase knowledge and specialism in a system that is dominated by local authorities, will no doubt result in a rise in enforcement in the UK.

 

• However, some countries in Europe are responding to the challenges of innovation and enforcement somewhat differently. Regulators in some countries are far more open to innovation, attracting companies by setting standards that allow quicker product launches.

Thirdly, the topic of whether product safety regulation can evolve to cater for new technology or whether revolutionary ideas are needed was discussed at length. The questions we pose below are challenging product safety specialists from every discipline:

• How will liability and responsibility be allocated?

 

• How can manufacturers communicate safety messages to consumers, especially when the functionality of the product may change over time?

 

• Where a product suffers from a defect, what if this defect was caused by an update rather than original software?

 

• Are definitional changes to key words in the product safety arena (e.g. “hardware”, “software”, “defect” and even “product” itself) needed to reflect the changes that this new technology is likely to bring?

As noted above, many trends in product safety are global, not US or Europe specific. We outline a number of trends:

• We are in a time of rising market surveillance authority. There are new regulatory structures emerging, and market surveillance authorities are moving out of a time where they are as significantly constrained by resource considerations and the global financial crisis. Of course, this is a global trend to which there are exceptions.

 

• Product safety is on the radar in most countries across the world. There has been a rise in mandatory reporting obligations, a sign of the rapid development of product safety regulations. Mandated reporting of safety issues is now the norm rather than the exception around the world.

 

• Despite an increase in convergence in terms of regulator’s approaches across the world, aided by organisations like the OECD and ICPHSO, there are also divergences. They include differences such as mandatory advertisement requirements arising in certain areas, or specific reporting forms. These divergences can impact on a company’s ability to maintain consistency of approach in a product safety issue that occurs in many countries.

 

• Across the world, companies are seeing authorities consider and introduce regulations in response to innovation. This is not expected to change and is a global trend. However, the key message from all stakeholders at ICPHSO was the importance of a continued, open, conversation.

It was clear by the end of the ICPHSO Meeting that the discussion would not end in Florida. Indeed, it was noted multiple times during the week that we are at the dawning of a “transformative era,” and we think it is likely that the themes we have drawn out above will continue to challenge, inform and engage product safety professionals for some time to come.

The next ICPHSO International Symposium (bit.ly/2oGLjUN) is being planned for November 2018, hosted by the European Commission in Brussels as part of the European Commission’s International Product Safety Week. Watch this space.

Dispatch from the EU is a monthly feature provided exclusively for PSL subscribers by Cooley LLP, www.cooley.com. For further information about the above, contact Rod Freeman at rfreeman@cooley.com.