Legal spotlight - December 23

RECENT STATISTICS published by the UK’s Office for Product Safety and Standards (OPSS) have found a high percentage of products tested failed to meet required regulatory standards. Between October 2021 and September 2022, OPSS targeted 2,260 products from various online marketplaces – ‘online marketplace platforms’ (OMPs) – for testing. According to the regulator, 81% of these products, totalling 1,832 items, were found to be non-compliant. 

In its product regulation strategy, published last summer, the OPSS committed to deliver protection through responsive policy and active enforcement. A key part of that commitment was for the OPSS to build its enforcement capability, strengthening checks on the compliance of products sold online, and acting on non-compliance. The growth in online shopping is a long running trend and the results of their OMP product testing programme will confirm to the OPSS that the regulation of products sold online has not kept pace with evolving buying habits.

The testing focused on low-price unbranded or unknown branded products which had poor reviews or had low-quality listing photos. The OPSS said that this product group was more likely to be non-compliant and that these are not representative of all products sold by OMPs. Products were targeted based on the OPSS assessment of risk and with the expectation that enforcement and corrective action would be taken where non-compliance was detected.

The product category with the highest rate of non-compliance was toys. Of the toys tested, 144 were compliant, while 585 were not. At the same time, a total of 431 small mains powered electrical products breached required standards, while just 84 were compliant. Cosmetics were also scrutinised, with 102 found to be compliant – less than half the number that were in breach (224).

However, the OPSS said comparing compliance between categories is not straightforward because each product type has its own rules and standards to follow. In addition, 26 products were excluded from the analysis because they did not fall within the specified product categories.

The potential safety risks when online shopping have been highlighted by the OPSS in the past. In 2021 for example, it issued a product safety message in the run up to Christmas, asking the public to check who they are buying from. The message pointed to the fact that many consumers appeared unaware that online platforms are not always the seller of the products on their websites but often act as an intermediary between an independent company and the buyer. Buying products from businesses based overseas or which fail to provide an address can increase the risks.

Plans for reform of UK product safety rules are already underway with the publication earlier this summer of the OPSS’s proposals that – if implemented – would streamline the existing legislative framework, placing a greater emphasis on compliance with industry-led standards. The proposals would also, according to the OPSS, impose “more flexible obligations on businesses that are proportionate to the product’s risk”.

One option the OPSS is considering is a new categorisation regime whereby products are categorised “by their hazards and consequent risks”. The OPSS said that move could incentivise manufacturers to “design out” hazards. It has suggested that marking and conformity assessment requirements, including any requirement for third-party testing, could be “more explicitly” linked to the risk level of a product and that “lower-risk products” would benefit from “a simpler and fairer system” of regulation with associated lower compliance costs.

Product manufacturers may also be able to “make certain marking and compliance information available digitally” in future under a new voluntary system that would facilitate electronic labelling.

The OPSS proposals also include the imposition of new product safety duties on ‘online marketplaces’, where they import or distribute products, together with duties on online marketplaces to cooperate with enforcement authorities to provide information and take appropriate actions if products are unsafe or non-compliant. 

An additional duty could be that marketplaces must have a compliance function established in the UK which is responsible for ensuring appropriate policies, processes and systems are in place to address the availability of unsafe products.

Enhanced enforcement powers could also be provided for under an updated product safety framework.

With consumers increasingly turning to online markets in a search for cheaper goods, safety concerns are only likely to grow without effective intervention. Regulation is just one aspect of that. The regulator seems keen to bare its teeth but, crucially, will need resourcing to allow it to bite.

The Chartered Institute for Trading Standards has called for more safety checks of products at ports and borders to ensure compliance. The OPSS has already seen its role expanding recently. In 2021, the government announced that it would take on responsibility for the national regulation of construction products. If further responsibilities for increased checking of OMPs is to be included, additional funding will be needed for this, along with enough suitably qualified inspectors to carry out the task.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com