The EU’s new General Product Safety Regulation is set to land in December 2024

The question

What do manufacturers and online marketplaces need to think about as the EU General Product Safety Regulation (GPSR) comes into force in December 2024?

The key takeaway

Following our earlier Snapshot on the draft legislation, the EU's new GPSR has completed its journey onto the EU statutory books and will come into effect from 13 December 2024. It repeals the now-outdated General Product Safety Directive (in force since 2001) and the Directive on Food-Imitating Products. Providing a horizontal legal framework for non-food consumer products and making changes to address challenges posed by new technologies and online selling – the GPSR will impact a host of businesses as well as online marketplaces. A number of new obligations will apply to manufacturers which require more detailed safety assessments, consumer information and updated complaint handling and product recall procedures. Equally, online marketplaces face an unprecedented number of new requirements to deal with potentially dangerous goods sold on their platforms, with supervisory authorities empowered to issue new orders that carry a risk of penalties for non-compliance.

The background

The old product safety regime was governed by the General Product Safety Directive, which covered all products that do not have sector-specific directives, such as food and pharmaceuticals. The European Commission examined this regime in June 2020 and found that it was not equipped to adequately deal with product safety issues in new technologies, products entering from outside the EU, and online platform sales. Over time this had led to Member States diverging significantly in their product safety enforcement, and mandated product recalls became less effective.

The new GPSR represents a promotion for the substantive law from a directive to a regulation, such that it will have direct effect on EU Members States, without the requirement to implement national transposition law. It amends the rules on the safety of non-food consumer products, placing obligations primarily on manufacturers to ensure safe products are placed on EU markets. These rules cover general product safety requirements, consumer information, complaint handling and obligations in case of accidents. It also focuses on protecting online shoppers, imposing new requirements on online marketplaces as distinct entities with the power to address dangerous products on the market. The GPSR both compliments and supplements the additional requirements placed on online marketplaces by the Digital Services Act (regarding seller due diligence and accountability) which has been in force since February 2024. 

The development

Manufacturers face a number of new obligations across the product safety journey under the GPSR:

• Responsible person. Manufacturers that are not based in the EU must establish an operator within the EU that is responsible for compliance with the GPSR, and they should be identified on the product or its packaging. Their role will include being the point of contact for supervisory authorities enforcing GPSR obligations and conducting compliance checks of the product's documentation and safety information. 
• Software updates. Any person making substantial modifications to a product is considered a manufacturer under the GPSR, and the regulation explicitly refers to software updates that may change the product and impact its safety. An operator other than the manufacturer enacting significant software updates could therefore be subject to the GPSR's obligations.
• Safety assessments. Manufacturer's safety assessments of their products must include consideration of several new factors. These additions are aimed at ensuring the safety of new and emerging technologies, and include consideration of their cybersecurity risks, AI functionalities, their likelihood of use by children, and any interconnectivity with other products. This analysis should then be documented, kept for 10 years and made available to supervisory authorities if requested.
• Contact and identification information. More detailed contact and identification information must be provided to consumers. The manufacturers' name, registered trade mark, postal and electronic address for contact must all be indicated on the product or its accompanying documentation. Manufacturers must ensure that their products also have serial, type or batch codes, or other information that identifies the product. Equally, clear instructions and safety information must be provided in the language local consumers will understand.
• Investigating and reporting complaints. Communication channels must be set up for consumers to submit complaints about any safety or accident issues experienced, and the manufacturer should set up an internal register logging them. The Commission's portal "Safety Gate" (previously known as RAPEX) must then be notified of any serious accidents that the operator learns about, without undue delay.
• Product recalls. In the event of a product recall, authorities and all affected consumers must be notified, and the regulation details the variety of methods that must be tried to contact all affected consumers. There is a prescriptive template for the structure and content of these recall notices that the Consumers must then be offered an "effective, cost-free and timely remedy" consisting of at least two of the following: (i) repair; (ii) replacement; (iii) refund of the value, reflecting existing remedies available to consumers in other EU directives.

Online Marketplaces: The GPSR also imposes several new obligations on the providers of online marketplace services and Member States' enforcement authorities:

• Single point of contact. Online marketplaces must establish a single contact point for direct and quick communication with both the Member State authorities and consumers about any product safety issues. The marketplace must also register itself on the EU's Safety Gate and display this contact information on that portal.
• Information provision. Marketplace interfaces must be designed to enable traders to provide the key contact, product and safety information required by manufactures on the product listing. This also applies to businesses offering products for sale online (as well as marketplaces). UK businesses will be in-scope where they are considered to 'target' these consumers by dispatching to their EU regions, offering services in their languages or currencies or simply registering under a domain name of a Member State.
• Enforcement. Member State authorities will be given powers to compel online marketplaces to address illegal content relating to dangerous products on their platforms. Marketplaces can be required to remove the content, disable access to it or display clear warnings for end-users about it. Marketplaces will have to comply with any such orders without delay and within two working days. Acting expeditiously against content related to dangerous products will also allow marketplaces to benefit from the exemption from liability under the Digital Services Act.
• Non-compliant products. Consumers must be directly notified of any product recalls (with a new template product recall notice being introduced too), and marketplaces will have to publish information about the recall on their online interface to reach impacted consumers that they don't have knowledge of. Marketplaces must also have mechanisms to deal with traders that repeatedly offer non-compliant products for sale, first issuing a warning and then suspending them from the marketplace for a reasonable period of time.
• Information sharing. There is a strong requirement for marketplaces to co-operate with other EU Member State authorities on any dangerous goods discovered to be sold on their platform. Information should be exchanged with law enforcement agencies at EU and national level, informing all other Member State authorities where the products were offered of the risks involved, how many products were sold and any corrective measures taken. If needed, authorities must be allowed to scrape the marketplace for data or access the marketplace's online tools to identify further dangerous products.

Why is this important?

The GPSR comes into force on 13 December 2024 and applies to all economic operators placing products on the market in the EU, even if they are not established in the EU. In combination with the Digital Services Act, it imposes numerous new requirements on online marketplaces that may require a substantive re-design of interfaces and user journeys, as well as operational changes to their safety issues management process. Equally manufacturers will need to update their product development and supply chain processes. Member States will have the power to set penalties for any infringements of the GPSR, with no maximum penalty set by the GPSR, leaving businesses vulnerable to the possibility of high fines in individual Member States. The GPSR has also been added to the EU’s Collective Redress Directive, therefore collective actions may be taken against businesses in breach.

Any practical tips?

Both manufactures and online marketplaces should closely scrutinise their product safety practices to ensure they are ready for compliance with the new GPSR. For manufacturers, safety assessments will have to be reviewed to ensure they include the new factors and consumer information. For online marketplaces, the user journey and interfaces for product listings may require a re-design to display all the necessary information in the correct languages. Both businesses will also need to consider how to handle safety complaints and respond to product recall requests quickly.

Summer 2024