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Monday March 06, 2023

Reynders Gives Update on Product Safety Activities at DG JUST

Voluntary industry actions toward improved product safety are intertwined with the EC's approach to mandatory compliance. That was among the pointsPSL heard in a February 22 discussion with EC Commissioner for Justice Didier Reynders at the ICPHSO conference in Orlando, Fla.

The interaction occurs in at least two ways. First, DG Justice and Consumer Affairs – which oversees EU product safety – has created relationships and frameworks that can be built upon. This is true of the EU's product safety pledge for online sales platforms, which pre-dates by some two years the e-commerce elements of the all-but-finalized General Product Safety Regulation.


But the voluntary-mandatory connection can continue after requirements go into place too:

"[W]e believe that voluntary initiatives will always have an important role to play in nudging companies to go beyond the legal requirements."
"That is why we are discussing with the current signatories how to strengthen some of its current commitments, adding new product safety commitments and even extending them to other areas of consumer protection. We are also exploring how to involve new actors, in particular consumer organisations, into the cooperation mechanism."

That explanation is part of extensive replies to the discussion promptsPSL brought to the sit-down. Those insights supplied by Didier and his team are below (their emphases).



PSL: There is lots of movement towards updated product safety requirements in the EU (GPSR, toy directive, ROHS - Rules on hazardous substances in electronics, etc.). How does DG Justice plan to keep companies updated on what they need to understand? What internal adaptations (resources, staffing, procedures) is DG Justice planning in reaction?


With regards to the GPSR, we specifically tried to make it easier for companies to understand what their obligations are while increasing protection for consumers.


Product recalls, for example, are not very effective under the current legislation. In the new legislation there will be detailed rules for businesses to improve this, such as:

  • An obligation to use consumer data for recalls in order to reach consumers directly.

  • Companies will have to publish recall notices more widely including through their website, social media channels, newsletters and retail outlets.

  • Online marketplaces will also need to publish information on the recall on their online interfaces and directly notify all affected consumers.

  • There will be mandatory templates for a recall notice.

  • And an obligation to provide remedies to consumers in case of a safety recall.

We will also accompany the legislation with guidelines for companies on how to fulfil the new obligations. These will focus in particular on the needs of SMEs, including micro-enterprises.


With regards to market surveillance, the GPSR builds on rules already adopted for other types of products, such as toys, electrical appliances or cosmetics, in the recent Market Surveillance Regulation which entered into force in July 2021. We are therefore making sure that there are consistent rules for all products and this should make life easier for everyone – authorities and businesses alike.


With regards to the revision of the Toy Safety Directive:

  • Businesses should know that our intention is to streamline product safety rules and align the product safety aspects for toys and for childcare products falling under the General Product Safety Regulation as much as possible.

  • Several provisions of the GPSR will also apply to toys. This is the case for provisions on online sales, recalls and accident reporting.

With regards to our rules on the Restriction of Hazardous Substances in Electrical and Electronic Equipment:

  • The review of the current rules will contribute to the objectives of the European Green Deal and the Chemicals Strategy for Sustainability.

The Commission will also continue to cover the environmental risks through our Rapid alert system for dangerous non-food products (Safety Gate/RAPEX) where non-compliance with rules on hazardous substances is already a recurring issue. Many products pose a risk both to human health and the environment, which underlines that safety and sustainability are mutually reinforcing goals.


On our internal organisation within the Commission, yes, legislative activity, including preparations for the implementation of the GPSR involve high-intensity work but we are always striving to improve working methods to do more and better with less. We already have extremely competent staff in the Commission working on those issues. European consumers are in good hands.



PSL: There also are lots of other developments that can affect product safety (right-to-repair, common charger, ecodesign, circular economy, cybersecurity etc.). How is DG Justice approaching the product-safety angles of such initiatives, especially unintended consequences? Are there any especially worrisome challenges, and how is DG Justice approaching those?


On cybersecurity, the Commission recently adopted a proposal for a Cyber Resilience Act. Here for example, we propose that products with digital elements can only be made available on the market if they meet specific essential cybersecurity requirements. It requires manufacturers to factor cybersecurity in the design and development of the products with digital elements.


On other initiatives aimed at increasing the sustainability and circularity of products, such as the right to repair, the common charger, or eco-design requirements, it is important to stress the fundamental role of the general product safety framework.


Our legislation sets out that all products on the Union market must be safe. In this regard, the GPSR text resulting from the political agreement clearly states that the product safety requirements should also apply to second-hand products or products that are repaired, reconditioned or recycled, when re-entering the supply chain in the course of a commercial activity. The safety dimension of these sustainability initiatives is essential to gain consumers' trust.



PSL: The EU is paying attention to emerging tech, such as via the AI liability proposal. In the meantime, what 2023 plans does DG Justice have for keeping on top of emerging tech (IoT, AI, autonomous movement, micromobility, etc.)? Are any areas especially troublesome from a product safety perspective, and what are the plans for those?


What we see now as a 'product' is completely different from the products that we saw on the market 20 years ago, and most probably from what we can expect to see in the next 10 or 20 years.


This is precisely why the GPSR provides a flexible and wide product definition, which is future-proof, to ensure that the general product safety framework can be applied to current new-technology products we are aware of, but also to those that might appear in the next years.


Software became an emblematic example of these new technology products during the negotiations of the proposal, but the GPSR equally covers apps or other programs that might pose safety risks for consumers (e.g. a baby monitor app to be used on mobile phones).


New technology products are already covered by the current GPSD, so we are not extending the scope of our product safety legislation, just clarifying how product safety rules apply to these new types of products to bring more legal certainty.


For economic operators:

  • Developers of new-technology products - just like manufactures of any other products - will need to apply 'safety by design' principles.

  • They will also have to have technical documentation containing the analysis of all possible risks – connectivity, cybersecurity or the potential self-learning feature of a product for example – and the solutions adopted to eliminate or mitigate such risks.

  • They will also have to look at possible mental health risks, in line with the WHO holistic definition of health. For example, when looking at VR tools, this would mean that producers should not only ensure that such products do not cause eye or skin irritations, but also that they are not causing cyber-sickness to consumers.

Another area which has been cause for concern is making sure that products remain safe during their whole lifecycle. This is why the concept of 'substantial modification' was introduced to cover cases, for example, linked to software updates of a product:

  • Such updates, should they for example have safety relevance or introduce new risks or modify the original risks of the product, would change the responsibility framework: those who are responsible for such updates would take up the relevant obligations of the manufacturer. For example, if an app aimed to improve the efficiency of a battery is downloaded into a device and consequently the hazards of the device increase and it overheats, the software developer would become the responsible actor.

We are not just making sure we cover new technologies in product safety legislation, but we are also using these technologies ourselves to ensure product safety.


The eSurveillance WebCrawler we developed last year to support market surveillance authorities scans the internet automatically, using all product identification data from Safety Gate alerts, to detect whether any of the dangerous products reported in EU Safety Gate are still available online. Each notification is monitored for 6 months after its publication to prevent the re-appearance of reported products. This is much faster than carrying out manual checks.



PSL: For e-commerce, there's the product safety pledge that's been around for about four years, and the GPSR updates should address issues like platforms' contact points and mandatory delisting. What are the next steps for addressing this area, especially aspects that might not be addressed in the GPSR? Are any challenges particularly hard to solve, such as proliferation of direct shipment versus centralized importers?


The GPSR and also other EU initiatives such as the Digital Services Act will turn many of the product safety pledge commitments into legal obligations and cover all marketplaces, also those that are not signatories.


For instance, monitoring the Safety Gate website and quickly reacting to governmental and other notifications concerning dangerous products will now become legal obligations for all online marketplaces.


Also, the new rules on product safety will require that every product placed on the EU market should have a responsible person in the EU, which is crucial for efficient market surveillance enforcement of products coming from outside the EU.


Nevertheless, we believe that voluntary initiatives will always have an important role to play in nudging companies to go beyond the legal requirements.


That is why we are discussing with the current signatories how to strengthen some of its current commitments, adding new product safety commitments and even extending them to other areas of consumer protection. We are also exploring how to involve new actors, in particular consumer organisations, into the cooperation mechanism.



PSL: Are there any regulatory/surveillance/compliance plans or initiatives upcoming in 2023 that companies should keep watch on?


The Commission will present in the first half of this year a proposal to revise the Toy Safety Directive.


The current Toy Safety Directive dates back to 2009 and sets out the safety requirements that toys must meet before they can be marketed in the EU.


The Commission's evaluation of the Toy Safety Directive identified several shortcomings that could compromise the health and safety of children. In particular, there is a need to strengthen children's protection from additional hazardous chemicals (not adequately covered in the current Directive) and from possible combination effects of chemicals.


The revision will also aim to improve the enforcement of product safety rules and provide for a more even level playing field by making it easier to stop non-compliant and dangerous toys entering the EU or already on the Union market.


We have launched a 'Fitness Check of EU consumer law on digital fairness'. The evaluation will run until spring 2024 to determine whether the current EU consumer laws in the area of marketing and consumer contracts still ensure a high level of consumer protection in the digital environment. For example, are the current rules sufficiently clear to tackle so-called 'dark patterns'? Are vulnerable consumers sufficiently protected? Should it be easier for consumers to cancel their subscriptions?


The Commission intends to propose this year targeted updates to better protect consumers from digital challenges and to empower them to enforce their rights themselves.


These changes would affect the rules governing cooperation between consumer protection authorities to help deter unfair business practices and support more effective investigations into breaches of consumer law. The Commission is also currently looking at ways to modernise alternative dispute resolution to consumers.