February 20, 2013

The General Product Safety Directive (GPSD) is Dead. Long Live the Consumer Product Safety Regulation (CPSR)!

Consumer Advertising Law Blog

On February 13, 2013, the EU Commission announced a new legislativepackage, which includes a proposed Regulation on Consumer Product Safety that will replace the current General Product Safety Directive (GPSD). It also includes a proposed Regulation on Market Surveillance. These proposals are for Regulations, which would apply directly in all EU jurisdictions rather than the current regime of Directives which are implemented through separate national legislation.

The draft Consumer Product Safety Regulation (CPSR) applies to consumer products, which it defines as products intended for consumers; likely to be used by consumers even if not intended for them; or to which consumers are exposed in the context of a service provided to them. Key changes include:

  • The GPSD term 'producer' has gone - economic operators are now named i.e. manufacturer, distributor etc. and owe specific obligations. This change brings the regime for general product safety in line with that which is already in place in other product sectors, such as toys.
  • New measures are included to enhance product identification and traceability, such as indication of origin labelling.

The general product safety requirement (i.e. the obligation only to place 'safe' products on the market) is retained. Like the GPSD, the CPSR will apply save where sector-specific legislation provides equivalent protection.

To an extent 'proportionate to the potential risks' of their products, manufacturers will be obliged to:

  1. Carry out sample testing of products made available on the market;
  2. Investigate complaints and keep a register of complaints, non-conforming products and product recalls;
  3. Keep distributors informed; and
  4. Establish technical documentation regarding their products which must contain the necessary information to prove that their product is safe.

Although enforcement should be more consistent, given the overarching Regulation, penalties for infringement will be set by Member States. They are required to lay down rules establishing penalties that are "effective, proportionate and dissuasive", which distinguish between sizes of economic operator, and may include criminal sanctions for serious infringements.

The proposed Market Surveillance Regulation seeks to make enforcement more uniform and streamline market surveillance procedures by bringing them together in a single instrument. It is planned that it will apply to all consumer products other than food and medicines.

The legislative package envisages simplifying the process of updating standards and aligning the new CPSR rules with market surveillance rules for all consumer products. The measures are expected to come into force circa 2015.

The EU Commission has also announced a "Multiannual action plan for market surveillance covering the period 2013-2015. This contains 20 proposed actions, including expanding the use of cross-national web-based databases (i.e. RAPEX and the ICSMS database) to exchange and record product safety information; a more sizeable central bureaucracy; more multinational cooperation and taskforces; a research focus on internet selling; and more joined up and effective use of customs procedures to control products entering the EU.

© Arnold & Porter Kaye Scholer LLP 2013 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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