On 11 March 2021 the UK government announced a consultation with the intention of reviewing and strengthening the UK’s product safety laws to ensure that they are fit for the 21st century. Business Minister Paul Scully spoke of a “new, modern product safety regime which will unleash the creative potential of our businesses while keeping consumers safe”.
Whilst product safety is the focus, the review will also consider how the Consumer Protection Act 1987 (CPA) is working in practice today. This legislation, which implements the 1984 European Product Liability Directive (PLD), came into force over 30 years ago, and provides a strict liability regime for the recovery of civil damages with a “consumer expectations” test. The PLD has itself been under review by the European Commission since 2016, however, post Brexit, the UK is taking the opportunity to shape its own legislation considering where responsibility should lie taking into account technological advancements such as artificial intelligence, advanced robotics, autonomous systems and the Internet of Things.
The government has made a call for evidence to ensure that legislation keeps up with technology as well as the transition to Net Zero, the UK’s legislated commitment to end its contribution to global warming by 2050. Manufacturers, distributors, consumers and the wider public have all been invited to submit their views before 3 June 2021. The review’s focus will not extend to the protection of consumers from unfair or misleading trading practices, nor will it cover products that have their own regulatory regime such as food, chemicals, medical and healthcare products, construction products or vehicles.
The specific topics on which the government is seeking evidentiary input include product design, manufacture and placing on the market; new models of supply; new products and product lifecycles; enforcement considerations; and a diverse and inclusive product safety framework. The call for evidence sets out a catalogue of 25 questions that fall within these categories.
Whilst the CPA and product liability are not the specific focus, several questions raise related issues. Given that the legal framework was created prior to the e-commerce revolution, Question 10 queries, “Thinking particularly about new models of distribution and supply (including online sales and the sharing economy), is it always clear where responsibility / liability for product safety lies?” As part of the enforcement considerations section, the paper notes that the CPA has remained unchanged for the most part over its three-decade lifespan and its provisions “do not reflect new technologies such as internet-enabled devices, AI, and 3D printing which are complicating how liability can be attributed”. Question 22 then raises the question “When it comes to product liability, do consumers have the right tools and information to take action on their own behalf?”.
While the UK initiative is broad, it will be interesting to see whether certain responses provided will align with those already submitted to the Commission as part of the public consultation that was held in 2017 on the issue of whether the PLD remains fit for purpose. In that exercise, nearly half of the consultees were concerned that the PLD might not be capable of tackling all issues raised by technological advances. Consultees tended not to favour a wholesale revision to the legislation but instead amendment by way of revisions and the provision of guidelines. Ideas published after the consultation by an expert group on liability and the Commission included a reversal of the burden of proof under specific circumstances, compulsory insurance for certain risks, strict liability for operators of certain technologies, reassessment of the definition of a “product” and the notion of “putting a product into circulation”.
As regards the UK framework, the government intends to publish a summary of responses and an evidence paper by the end of August 2021. No doubt the UK’s product safety and liability regime will be subject to amendment. Whether this will be by way of revisions and guidance (as appears likely in Europe) or by way of a complete overhaul remains to be seen.
This initiative may also provide indications on how the UK’s lawmaking process will progress now that the country is no longer within the EU. Will there be more flexibility and a speedier passage of any draft legislation in the absence of the need to consult with member states?