The King’s Speech: Product Safety and Metrology Bill

On July 17, 2024, following the outcome of the national election on July 4, 2024 , King Charles III gave a speech to the UK Parliament in which, as directed by the new government, he outlined the key points of its legislative and policy agenda.

The agenda includes a Product Safety and Metrology Bill. Some form of legislation to address UK product regulation was expected in order to take account of market developments, the European Union’s ongoing overhaul of its product safety regime, and new technologies, such as online selling and artificial intelligence (AI). We set out below a brief summary of the Bill.

Product Safety and Metrology Bill

In a significant departure from the previous regime’s policy, the new government has indicated a theoretical readiness to align with the EU in the background document outlining the content and purpose of the new Product Safety and Metrology Bill, acknowledging that:

• “The majority of the UK’s product safety and metrology framework is derived from EU law developed over the past four decades.”
• “As technology and regulation continues to develop, we need new powers to address current or future threats and hazards, and ensure a continued supply of safe goods on our market and so this Bill will enable us to make the sovereign choice to mirror or diverge from updated EU rules, so that we can maintain high product safety while supporting businesses and economic growth.”

Importantly, it is said the Bill will ensure:

“… that the law can be updated to recognise new or updated EU product regulations, including the CE marking, where appropriate to prevent additional costs for businesses and provide regulatory stability.”

This willingness to align is couched in cautious technocratic terms, however, and it is noteworthy that the Bill will:

“… also ensure the UK can end recognition of EU product regulations.”

The guiding principle for aligning or not aligning is said to be “the best interests of UK businesses and consumers.”

What Does This Mean in Practice?

The detail of what types of products the Bill will cover is not fully spelled out. There is a reference to “nearly all manufactured products.” Toys, fireworks, cosmetics, and machinery, as well as batteries and e-bikes, get specific mentions. It seems likely that the types of products affected will include most consumer products covered in legacy EU regulations either by general product safety legislation or by sector-specific harmonized legislation, including that which provides for CE marking in the EU.

Alignment With EU General Product Safety and Product Liability Legislation?

Some commentators have suggested that alignment with new EU product legislation is likely, including the EU General Product Safety Regulation (EU) 2023/988 (EU GPSR) due to come into force in the EU in December 2024 and the revised EU Product Liability Directive (PLD) likely to come into force in the next few years. It will at least be necessary for the Bill to grant powers to amend product regulations to include software as a product and take account of AI. But, if the new government follows through on its stated pragmatic approach, then the extent of alignment with the EU legislation will depend on whether such alignment is seen as cost-effective and likely to be welcomed by businesses and consumers.

Some degree of alignment with EU GPSR is perhaps likely, although this will merit careful thought as EU GPSR is a more complex piece of legislation than the current General Product Safety Directive 2001/95/EC (GPSD), which was implemented in the UK by the General Product Safety Regulations 2005 (UK GPSR). As drafted, EU GPSR does not quite function as a general product safety “backstop” in the same way as the GPSD, and it removes some products such as medicines and chemicals wholly or partially from its scope.

The new EU PLD contains some new harmonizing provisions that will impact the approach of national courts in some potentially significant ways that are apparently intended to make it easier for claimants to succeed in establishing liability and causation. While the UK product liability regime (based on the 1985 EU Directive) likely needs updating to take account of technological progress, it is less clear that it is necessary to align in all respects with the new EU PLD. The extent of such alignment will depend upon whether the new Labour government considers it in the interests of UK businesses and consumers. Trade unions and claimant lawyers, some of whom are affiliated with the Labour Party, may support alignment. Businesses and insurers will need to consider where their interests lie and provide reasoned feedback on any proposals in this area.

Conclusion

As ever, the devil will be in the details, but there are encouraging signs that the forthcoming product legislation is likely to be pragmatic and responsive to reasoned concerns from both consumers and businesses, rather than being informed by any prior commitment to either diverging from or aligning with the EU.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.