What you need to know about the EU General Product Safety Regulation 2023

Robin Adams, partner in our commercial team, discusses the main provisions of the EU General Product Safety 2023 (GPSR) legislation.

Background

The EU’s Regulation on General Product Safety 2023 (GPSR), which replaces the old EU General Product Safety Directive 2001 (GPSD), introduces a regime which better reflects modern technology, products and business practices. It came into force on 12 June 2023, so has been with us for some time.

The GPSR allows businesses to continue to make available on the market, after 13 December 2024, any products placed on the market before that date, as long as those products comply with the old GPSD regime and without needing to comply with the new regime.

However, it seems the end of the transitional period has taken many UK businesses by surprise: compliance with the old GPSD regime is no protection for products first placed on the EU market after 13 December 2024, which means a raft of new obligations for businesses wishing to supply such products into EU member states (or Northern Ireland).

Working out whether any particular products were “placed on the market” before 13 December 2024 will be fundamental for anyone wishing to continue to supply existing products free of the GPSR regime.

There is UK government and EU guidance on what “placed on the market” entails: in relation to existing products, engagement with that guidance will be essential to establish whether those products fall outside the GPSR regime.

Businesses wishing to bring new products to the EU market will need to familiarise themselves with the GPSR rules and ensure they are compliant.

GPSR: main provisions

At the core of the GPSR is a requirement that products supplied in or into EU member states are safe.

Products now includes items which can be connected to other items and any items provided as part of a service, so bringing “smart” products and software within the scope of the GPSR.

While used, repaired and reconditioned products are also covered, items supplied for repair or maintenance or products available as collectible items or items of historical interest are not.

Most of the GPSR does not apply to products covered by the EU’s harmonisation legislation, which imposes its own standards in relation to particular products.

However, the general product safety requirement under Article 5 does apply to products covered by the EU’s harmonisation legislation and some other parts of the GPSR apply where there is a gap in the harmonisation legislation, in relation to, for example, provisions relating to online marketplaces, accidents involving products, consumer information rights and product recalls.

The GPSR does not apply to certain categories of product, including food, human and animal medicines, living plants and animals, some aircraft, and antiques, amongst some others.

Nor does the GPSR deal with liability for defective products: for that, see the EU’s Revised Product Liability Directive, expected to enter into force in 2025.

In particular, under the GPSR:

• Economic operators must appoint a responsible person within the EU, responsible for various recordkeeping and compliance matters. This will add cost and complexity for those supplying products into EU member states, and may hit smaller businesses harder.
  
  
• Products now include interconnected products while safety now includes consideration of a product’s cybersecurity and AI functions.
  
  
• Where dangerous products are offered for sale via online market places, the market place operator has new responsibilities under the GPSR, even though they are not the manufacturer or supplier of the dangerous product.
  
  
• A risk assessment must be carried out for all products before being offered for sale in the EU. The GPSR sets out the factors to consider. Carrying out that new risk assessment could be time-consuming and expensive, depending on the nature of the product.
  
  
• Economic operators must report accidents involving products via the new Safety Gate system (which replaces the old RAPEX system). Minor incidents may not need to be reported and, helpfully, notification cannot be treated as an admission of liability.
  
  
• The EU Commission may set up traceability systems to allow products, their parts and provenance to be tracked where that product is likely to present a serious risk to the health and safety of consumers.
  
  
• New product recall rules apply, including rules about what must be included in a product recall notice, along with a right for consumers to a repair, replacement or refund following a recall.

Some provisions of the GPSR apply to all economic operators, such as the general obligation to only place or make available on the market safe products, or the obligation to keep records to show compliance with GPSR obligations (whatever those may be for the category of economic provider concerned).

'Economic operator' is broadly defined in the GPSR to include not just manufacturers but also distributors, importers, and, in a departure from the GPSD, service fulfilment providers (essentially warehousing, packaging or despatch providers that never own the relevant products). Various further obligations apply to those various categories of economic operators.

Other provisions apply to a “provider of an online marketplace”, including in relation to co-operation with regulators and others, take-down obligations, provision of a single point of contact, and removal of non-compliant traders from the platform.

Member states are free to set their own penalties for a failure to comply with the GPSR. There is no cap on fines under the GPSR.

The only requirement is that fines must be effective, proportionate and dissuasive, with due consideration given to the nature, gravity and duration of the infringement.

Practical steps for businesses supplying products in the EU (even if established in the UK)

The GPSR applies to a broad group of businesses and imposes a range of new obligations on businesses (wherever located) supplying products in or into EU member states.

Businesses supplying products in or into the EU should:

• Consider whether existing products can still be supplied free of the GPSR regime.
  
  
• Assess product portfolios, particularly in respect of smart, connected devices, to determine whether those products fall within the scope of the GPSR (taking account of the various exemptions).
  
  
• Appoint a responsible person based in the EU.
  
  
• Reassess selling practices, including in particular online selling practices, to determine if they are now captured by the regime.
  
  
• Incorporate cyber security risks as part of basic product safety and compliance requirements.
  
  
• Ensure and enhance the focus on compliance with the EU product safety regime across the board to mitigate against the risk of increased enforcement practices.
• Enhance recall efficiency strategies, including by way of traceability and recall plans to reduce the likelihood of the need for regulator involvement.

For further information or guidance on how the GPSR applies to your business, contact Robin Adams using [email protected] or 0191 211 7949.