Regulatory Timeline: Product Liability

“The big product liability story for the next five years is driverless cars – can we actually make them an everyday reality? The Government is certainly keen to, having spotted that there could be significant financial benefits in being at the forefront of this technology. Watch out for the Code of Practice on driverless car testing in early spring 2015: this will set ground rules for trials over the next 18 to 36 months, and could well inform future legislative changes (in the UK and in other countries) if successful.”

1 April 2015 – Government to publish Code of Practice in spring 2015 for driverless testing on UK roads

The Government has concluded that the UK’s existing legal and regulatory framework does not present a barrier to the testing of driverless vehicles on public roads (see the Department for Transport’s “The Pathway to Driverless Cars: Summary report and action plan” 11 February 2015). As such, the Government will instead draw up a Code of Practice promoting safety and setting guidance to be followed in responsible testing.

Anticipated to be published in spring 2015, those taking part in driverless car testing on public roads will be expected to comply with the Code of Practice. Failure to do so will be taken as an “indicator of negligence” by the Government.

1 June 2015 – Strengthening market surveillance for safer products and growth: package still making its way, slowly, through European Parliament and Council

Following the European Commission’s proposal for new rules to improve the safety of consumer products circulating in Europe and to step up market surveillance concerning non-food products, the European Commission proposed a new package of legislative and non-legislative measures in February 2013. The aim was that this would contribute both to strengthening consumer protection and to creating a level playing field for businesses.

However, the package remains held up in the European Parliament and Council. While generally being received positively, it is progressing very slowly, and certainly slower than originally anticipated. There is a sticking point around origin marking for all consumer products, but new evidence on this subject, being presented in early 2015, may resolve this issue.

There is currently no official prediction of when this new legislation will come into effect: it had originally been listed for early 2015. However, current indications suggest that it may not come into effect until mid-2015 at the earliest.

The three most important parts of the package are:

• a new Regulation on Consumer Product Safety (CPSR);
• a new Regulation on Market Surveillance for Products (MSPR), unifying and simplifying existing fragmented legislation; and
• a multi-annual plan for market surveillance of 20 individual actions that the Commission will undertake over the next three years.
• The proposed CPSR introduces some general obligations that will be new for most manufacturers, including:
• the obligation to have a technical file;
• the obligation to take action where there is reason to believe that a product is unsafe or otherwise not in conformity with the CPSR; and
• origin marking for all consumer products (which, of course, raises issues on how to determine the origin of a product that may contain parts from several countries).

There are also new obligations for distributors, including that they must check the manufacturer and importer’s labelling work, ensure that necessary corrective actions are taken if a product is unsafe or not in conformity with the CPSR, and order recalls as necessary.

The proposed MSPR looks to:

• increase the powers of market authorities to take action in relation to both consumer and non-consumer products and also in relation to unsafe products and products that do not necessarily pose a risk but which are simply non-compliant with the CPSR; and
• increase use of EU RAPEX emergency information exchange system to not only deal with consumer products that pose a serious risk but also to report corrective actions and measures taken by authorities.

As these are regulations and not directives, they will have direct effect. Therefore, once they are approved, implementation should be relatively swift.

13 June 2016 – The new Radio Directive (replacing R&TTE Directive) comes into force 

The European Commission has updated and streamlined the existing legislation on radio and telecommunications equipment (the R&TTE Directive) with the new Radio Directive, which comes into force on 13 June 2016. The new Directive is relevant to all products using the radio frequency spectrum, e.g. mobile communications equipment such as cellular telephones, car door openers, maritime radars and so on.

The key changes are:

• a clearer requirement that radio receivers achieve a minimum level of performance so as to contribute to an efficient use of radio spectrum;
• clear obligations for manufacturers, importers and distributors. The new directive is aligned with the New Legislative Framework for products (IP/14/111), which makes the overall regulatory framework for products more consistent and easier to apply;
• improved instruments for market surveillance, in particular the traceability obligations of manufacturers, importers and distributors and requiring prior registration of radio equipment within categories affected by low levels of compliance;
• deletion of unnecessary administrative obligations, such as the prior notification of radio equipment using non-harmonised frequency bands;
• a requirement to ensure that software can only be used with radio equipment after the compliance of that particular combination of software and the radio equipment has been demonstrated; and
• a power exercisable by the European Commission to require that mobile phones and other portable devices are compatible with a common charger.

There has been a two-year transition period leading up to this point, allowing manufacturers time to comply.