General product safety is the subject of a proposed EU regulation that decisively strengthens consumer protection in the era of online purchases of goods and services.
A uniform and consistent discipline is envisaged, both to the general regulation on market surveillance and to harmonized regulations on individual product categories.
Among the many new features is the introduction of due diligence, i.e., the responsibility of downstream operators (e.g., ecommerce) for product compliance. ABC to follow.
General product safety, the 2001/95/EC directive
The GPSD – General Product Safety Directive, dir. 2001/95/EC, implemented in Italy by d.lgs. 172/04 (1,2)-still represents the regulatory framework to ensure general product safety in areas not regulated by special industry regulations. Such as, for example, the General Food Law (EC Reg. 178/02) and the Hygiene Package (EC Reg. 852, 853/04 et seq.) in the food and feed sectors, the Food Contact Materials Regulation (EC Reg. 1935/04) for food contact materials and articles (MOCA. See All. 3).
The General Product Safety Directive needs to be updated for a number of requirements:
– Homogeneity of rules and their application in different member states,
– To align general and industry standards, related to harmonized products,
– Improve coordination between member state authorities on supervision and management of non-compliant goods (Rapex system, EU dir. 2019/771),
– Protect consumers with respect to international online purchases and those connected to IT devices and/or digital networks,
– Empower downstream operators in supply chains, (5)
– Integrate the framework with recent EU strategies and action plans (e.g., . digital services, artificial intelligence, chemicals, circular economy).
GPSR – The Commission’s Proposal.
The proposed General Product Safety Regulation (GPSR), adopted by the European Commission on June 30.6.21, is primarily characterized by the nature of the act. (6) A regulation precisely, that is, an identical text that applies simultaneously in all member states, on a par with the technical standards for various products and services.
‘All consumers, including the most vulnerable, such as children, the elderly and people with disabilities, have the right to safe products. Consumers should have sufficient means to exercise these rights, and member states should have adequate tools and measures available to enforce this regulation‘ (GPSR proposal, recital 5).
Objectives and general criteria
The aim of the GPSR is to ensure the safety of consumer products offered and placed on the domestic market, online and offline, regardless of their origin from the EU or third countries. Raise standards of safety, public health and consumer information, thereby improving the functioning of the internal market ‘as far asconsumer productsare concerned’ (cons. 4). (7)
‘‘Safeproduct’ means any product that, under normal or reasonably foreseeable conditions of use or misuse, including the actual duration of use, poses no risk or only minimal risks consistent with the use of the product, which are considered acceptable and consistent with a high level of consumer health and safety protection‘ (GPSR proposal, Article 3.1.2).
The general duties of business operators handling online sales, as well as those triggered by nonconformities and accidents-as well as consumer information rights-must also apply to products covered by special regulations, if they do not contain specific provisions in this regard (cons. 8).
Risk analysis and management
Risk analysis is the basis for the application of this regulation and the regulations it refers to, with a view to integrating:
– The harmonized, technical and implementing standards on which to base the presumption of product safety (Articles 5,6),
– priorities and control measures to be organized at the EU borders, in accordance with the Customs Code (Reg. EU 952/13, Articles 46 and 47),
– The management of theRapid Exchange of Information System(RAPEX) –
Safety Gate
, also already in use on goods subject to vertical regulations (EU reg. 2019/1020, Art. 20).
Vulnerable consumer categories, accessibility
The safety assessment of products must consider all aspects relevant to their use. The characteristics and presentation of the products, but especially ‘the specific needs and risks of the categories of consumers likely to use them, particularly children, the elderly, and people with disabilities‘ (recital 23).
Unfortunately, the European Commission still reveals its cultural immaturity with respect to the issue of social inclusion, as it only refers in general terms to ‘specific information needed to make products safe for a certain category of people‘ and their ‘accessibility‘. Without even mentioning the concept of
Universal Design
, instead prioritized in the corresponding discipline in the US.
Precautionary principle and environmental risk
‘The precautionary principle is fundamental to ensuring product and consumer safety and should therefore be given due consideration by all those involved in the application of this regulation‘ (GPSR proposal, recital 10).
Health protection, understood in a broader sense than risks of immediate harm, postulates consideration of ‘the environmental risk of a product to the extent that it may ultimately result in a risk to consumer health and safety‘ (cons. 11).
Food and feed products no, MOCA yes
Food and feed products remain excluded from the scope of GPSR legislation because they are subject to special vertical regulations (e.g., General Food Law, Hygiene Package) that also extend to their contiguous areas, as reflected among other things in the extensive scope of the so-called OCR(Official Controls Regulation, reg. EU 2017/625).
Materials and articles intended to come into contact with food (MOCA), on the other hand, while also subject to harmonized regulations, may fall under the scope of the GPSR in relation to hazards not covered by reg. EC 1935/04 or other legislation on food-related chemical and biological hazards (cons. 13). (8)
Consumer products that resemble food products
The GPSR repeals Directive 87/357/EEC on consumer products which, although not foodstuffs, resemble and may therefore be confused with foodstuffs. With the consequence that consumers, especially children, may bring them to their mouths, suck them or ingest them.
This directive dates back to a historical period before the launch of the Food Safety White Paper and has given rise to controversial interpretations over the years. Food-like products must therefore now fall under the application of the GPSR, for the express purpose of preventing the risks of choking, intoxication, perforation or obstruction of the digestive tract (cons. 17).
Products made available in service delivery, new technologies
Services should be excluded, in principle, from the scope of the GPSR. Instead, products ‘made available to consumers in the context of a service provision, including products to which consumers are directly exposed in the course of a service provision,’ should fall under it. With the exception, it should be noted, of ‘equipment on which consumers ride or travel operated by a service provider‘ (e.g., scooters and electric bikes. Cons. 18).
New technologies must also come to be considered in their ability to bring about new health and safety risks, such as by affecting the operation of related items and devices. Which in turn may be vulnerable to cyber attacks. Operators and national authorities must therefore consider the risks associated with new technologies already when designing products and evaluating them (cons. 19-21).
Responsibilities of operators
‘All economic operators involved in the supply and distribution chain should take appropriate measures to ensure that all products they make available on the market are safe and comply with this Regulation‘ (cons. 24).
Operators of marketplaces that broker the sale of products between traders and consumers must assume greater responsibility in countering the online sale of dangerous products. The criteria introduced by the GPSR thus complement the proposed 15.12.20 Digital Services Act (DSA) regulation. (9)
Manufacturers, responsibilities, and availability
The ‘manufacturer ‘-defined as ‘any natural or legal person who manufactures a product, or has it designed or manufactured, and markets it by affixing its name or trademark‘ (Art. 3.1.8)-must:
– Marking products unambiguously and recognizable by consumers,
– Report your name and/or brand name and contact information (e.g. web, email and postal addresses) where consumers can turn for complaints and reports,
– Provide security information, where necessary, in an easily understandable language (as prescribed in each member state),
– Take required corrective actions immediately in the event of product safety hazards, including through notification in the Safety Business Getaway,
– Compile and keep technical documentation to ensure safety for 10 years, up to 5 years complaint records (GPSR, Article 8).
Distance sales. The person responsible in the EU for non-EU products.
Offering for sale online or through other distance selling channels falls under the GPSR when in any way intended for consumers (Art. 4).
A representative in the EU must be designated and his contact details made available to consumers on all products for distance sale that come from manufacturers not based in the Old Continent (EU, EEA. Article 18).
Online distributors, liability and due diligence
The
Product Safety Pledge
(2018), a voluntary pledge signed by large ecommerce platform operators operating in the EU, contributes to the removal of hazardous non-food consumer products and provides for some of their activities to improve product safety, was found to be unsuccessful in achieving its goals (cons. 28).
Due diligence (lit. due diligence) should therefore be introduced, in the terms of cogent responsibility of online sales managers over the content hosted on their platforms, specifically pertaining to product safety. Due diligence has recently been proposed at the EU level for the generality of operators, it is recalled, including in relation to respect for human rights and environmental protection in supply chains. (10)
Online distributors. Registration, points of contact, cooperation
Online distributors ‘forthe purpose of effective market surveillance online markets should register on the Safety Gate portal and enter, on the same portal, information regarding their single points of contact so as to facilitate the communication of information on product safety issues‘ (cons. 30). With the goal of quickly and specifically addressing product safety issues.
Special procedures of crisis management inherent to product safety should be organized by the managers of the platforms of ecommerce For the fulfillment of obligations under the GPSR, ‘particularly with regard to effective and timely compliance with orders issued by public authorities, processing of notifications from other third parties, and cooperation with market surveillance authorities, upon request, as part of corrective measures‘ (recital 31).
Ecommerce, effective procedures to mitigate liability
The effectiveness of the procedures adopted by ecommerce managers ‘To promptly remove content referring to dangerous products from their online interfaces as soon as they actually become aware or, in the case of claims, become aware of the illegal content‘ is the condition for benefiting from the exemption from liability for hosting services provided by the Digital Services Act (recital 32).
In fact, the obligations under the RSPG do not extend to systematic surveillance of information transmitted or stored, nor to active detection of facts or circumstances indicating the presence of illegal activities. Due diligence , however, entails an effective ability to intervene when online distributors have been informed, in particular, ‘of facts or circumstances on the basis of which a diligent trader should have detected the illegality in question.’
Traceability and cooperation
The traceability of products and the recording of technical documentation relevant to their safety is a basic requirement to be applied to digital retail as well as physical retail (Article 17). Therefore, ecommerce platforms should not allow advertisements to be posted if the trader has not provided all information related to product safety and traceability.
Market supervisors must be able to access the platforms and be able to extract relevant data(data scraping). Online distributors must cooperate in this regard, as well as comply with orders from authorities to handle critical situations by removing content, informing consumers, and recalling dangerous products.
RAPEX to Safety Gate
The ‘consumer safetynetwork,’ composed of member states’ product safety authorities, is to cooperate with the product compliancenetwork. The Safety Gate-a new name given to RAPEX-is structured as follows:
– an early warning system on dangerous non-food products, through which national authorities and the Commission can exchange information on such products,
– a web portal designed to inform the public and an interface through which businesses can fulfill their obligation to warn authorities and consumers about dangerous products(Safety Business Gateway, Article 25).
Notifications, recall, advertising
Member states must enter batch notifications and corrective measures taken, as well as subsequent updates, into the Safety Gate ‘without delay‘. Third countries may in turn join the information exchange system. The European Commission receives the notifications and, having verified and relevance, publishes them on the Safety Gate portal. In the event of discrepancies in risk assessments, member states may appeal to the Commission itself.
News about measures on products that pose risks to consumer health and safety must be made available to the public, subject to the requirements of transparency and subject to restrictions required for monitoring and investigative activities, as well as trade secrets (Treaty, Article 337). The public version of the Safety Gate should essentially provide consumers with the news they need to identify the product, the nature of the risk and the measures taken.
Sanctions
Penalties should ‘have a relevant deterrent effect on economic operators‘ and online distributors, so as to prevent the placing of dangerous products on the market. Taking into account the nature of the violations, the possible economic benefit, the level of risk, and the possible severity of harm to consumers.
The deterrent effect should be enhanced by the possibility for member states to publish the relevant news(name & shame). The homogeneity of sanctions is then explicitly advocated, to prevent operators from concentrating their activities in low-risk territories (so-called forum shopping).
Dario Dongo
Notes
(1) Directive 2001/95/EC, on general product safety. Consolidated text as of 1.1.2010 on Europa-Lex, https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A32001L0095&qid=1628975364864
(2) Legislative Decree. 172/04. Implementation of Directive No. 2001/95/EC on general product safety. Text updated 8.10.05 on Normattiva, https://bit.ly/3xMkmAS
(3) Dario Dongo. Brass, wood and other food contact materials. GIFT(Great Italian Food Trade). 2.8.21, https://www.greatitalianfoodtrade.it/imballaggi-e-moca/ottone-legno-e-altri-materiali-a-contatto-con-gli-alimenti
(4) For more details see theebook ‘Food Safety, Mandatory Rules and Voluntary Standards,’ at https://www.greatitalianfoodtrade.it/libri/sicurezza-alimentare-regole-cogenti-e-norme-volontarie-il-nuovo-libro-di-dario-dongo
(5) Dario Dongo, Pier Luigi Copparoni. Distributor responsibility, insights. GIFT(Great Italian Food Trade). 5/22/18, https://www.greatitalianfoodtrade.it/etichette/responsabilità-del-distributore-approfondimenti
(6) Proposal for a Regulation of the Parliament and of the Council on general product safety, amending Regulation (EU) No. 1025/2012 of the European Parliament and of the Council and repealing Council Directive 87/357/EEC and Directive 2001/95/EC of the European Parliament and of the Council. COM(2021) 346 final. https://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=CELEX:52021PC0346&from=EN
(7) NB: Products intended for professional use, but subsequently placed on the consumer market, are still subject to the GPSR ‘because they could present risks to the health and safety of consumers if used under reasonably foreseeable conditions‘ (cons. 12)
(8) This reaffirms the need for structural reform in the regulation of MOCAs. See previous article
(9) Digital Services Act. Proposed regulation on a single market for digital services (Digital Services Act) and amending Directive 2000/31/EC. COM/2020/825 final. https://eur-lex.%3A2020%
(10) Dario Dongo. Due diligence, the EU draft directive on socio-environmental responsibilities in the value chain. GIFT(Great Italian Food Trade). 7/27/21, https://www.greatitalianfoodtrade.it/progresso/due-diligence-il-progetto-di-direttiva-ue-sulle-responsabilità-socio-ambientali-nella-catena-del-valore
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
