New rules for consumer products sold online and offline in the EU

Update 12 June 2023 : The General Product Safety Regulation came into force today. 

 

On 23 May 2023, Regulation (EU) 2023/988 on general product safety – GPSR – has been published in the Official Journal of the European Union (Regulation (EU) 2023/988 of the European Parliament and of the Council of 10 May 2023 on general product safety, amending Regulation (EU) No 1025/2012 of the European Parliament and of the Council and Directive (EU) 2020/1828 of the European Parliament and the Council, and repealing Directive 2001/95/EC of the European Parliament and of the Council and Council Directive 87/357/EEC).The GPSR will reinforce the safety rules for non-food consumer products and will set a modernized regulatory framework for products sold in traditional brick and mortar stores as well as sold online.

Repealing the over 20 years old General Product Safety Directive, the GPSR serves as a safety net for non-harmonized and CE-marked/harmonized products, meaning that especially the new rules for online marketplaces, the obligations in case of an accident caused by a product and the requirements on remedies in the event of a product safety recall will complement the existing sector specific legislation for toys, electronics and personal protective equipment etc.

 

Timely notification of accidents through a modernized RAPEX system

Manufacturers will have to ensure, through the Safety Business Gateway (former RAPEX), that accidents caused by a product are notified without undue delay to the competent market surveillance authority. Accident is now defined as an occurrence associated with the use of a product that resulted in an individual’s death or in serious adverse effects on their health and safety, permanent or temporary, including injuries, other damages to the body, illnesses and chronic health effects. This will most likely come with increased burden for manufacturers, importers, distributors and potentially responsible persons who will be required to notify a significant number of accidents in the future.

 

Introduction of e-labelling

As an addition to the physical label, product and traceability information as well as instructions and safety information can be provided in a digital form, e.g. via an QR code or a matrix data code on the product that is linked to a website which then leads the consumer to the relevant information. This option – not a legal requirement (yet) – might be the gentle beginning of a new era in how consumer products in the EU will be labelled going forward.   

 

Responsible economic operator required for all non-food consumer products in the EU

To ensure effective market surveillance and to close existing gaps, the GPSR will expand the “Responsible Person” concept in Article 4 of the Regulation (EU) 2019/1020 on market surveillance and compliance of products to all non-food consumer products sold in the EU. This is particularly relevant for products that are sold through online channels from outside of the European Union directly into the Union without an establishment or legal representative in the Union. Adding on existing obligations, the responsible person – who is either the EU manufacturer, the EU importer, the EU authorized representative or a fulfillment service provider established in the Union – will have to check that the product complies with the technical documentation and other labelling requirements. This new requirement is expected to come with additional financial burden for traders and it is yet unclear whether – internal or external – service providers will be able to satisfy the increased need of responsible person services once the GPSR will become applicable.

 

Online display obligations for traders to ensure traceability

The GPSR will provide for the obligation to display certain product and traceability information not only on the physical product or its packaging, but on the online landing page as well. Thus, i.a. manufacturers and distributors will have to indicate the manufacturer’s contact details; the responsible person’s contact details, in case of a non-EU manufacturer; product identifiers including a picture of the product; and warning or safety information in the correct language on the webpage. Otherwise, traders risk being suspended from the use of the services of an intermediary online marketplace as those will have to make best efforts to assess whether traders have provided this information, Article 31 of the new Regulation (EU) 2022/2065 – Digital Services Act.

 

Strict deadlines for notice-and-takedown in online sales

As a novelty, online marketplaces will be required by law to process and act upon orders from market surveillance authorities to remove dangerous products from their platforms within a maximum of two working days; and to process notices from non-authorities (including notices from consumers, competitors and consumer associations) within three working days. This will transfer the voluntary commitments of online marketplaces in the Product Safety Pledge  into a legally binding and enforceable requirement.

 

Unambiguous recall notices and a choice of recall remedies for consumers

To increase overall recall effectiveness, economic operators and online marketplaces will have to directly notify all affected consumers without undue delay. When direct notification is not possible, they have to disseminate a clear and visible recall notice or safety warning through other appropriate channels, ensuring the widest possible reach including the company’s website, social media channels, newsletters and retail outlets, announcements in mass media and other communication channels. The European Commission is invited to set out a template for recall notices which has to avoid downplaying elements such as “voluntary”, “precautionary”, “in rare situations” etc.

The economic operator responsible for the recall will be required to offer to the consumer the choice between at least two effective, cost-free and timely remedies: repair, replacement and/or refund at least equal to the initial price.

 

18 months to reach compliance: GPSR will become applicable before Christmas 2024

After its entry into force, businesses and market surveillance authorities will have 18 months to adapt to the changes and ensure compliance by the application date on 13 December 2024. Although penalties for non-compliance with the GPSR will be subject to national legislation, it is to be noted that fines of up to 4 % of the economic operator’s or online marketplace’s annual worldwide turnover had been discussed during the legislative procedure.

While building compliance structures and the internal processes for product safety, economic operators and online marketplaces are advised to also take into consideration the upcoming revised Product Liability Directive which will transfer some of the above-mentioned rules to the European product liability regime.

All in all, the new GPSR will have material impact on the players in the market. There are a lot of remaining uncertainties and challenges. With a worldwide team on product stewardship we are very happy to support your business in preparing for the new rules and obligations.

For more information, you can contact our lawyers: Guido Kleve, Anja Reuter.