The Department for Business and Trade (DBT)’s consultation to the Smarter Regulation: UK Product Safety Review - Which? response

Which? welcomes the opportunity to respond to the UK Product Safety Review Consultation. 

This initiative is critically important as it represents an opportunity to deliver much needed reforms to the product safety regime and to ensure these are fit for future challenges.UK consumers buy millions of products every year, whether it's new gadgets around the house, white goods, travel tools, or children’s toys; these everyday items are a central part of our household spending. However, consumers’ shopping habits are undergoing profound changes,and the acceleration of e-commerce is fuelling new challenges to product safety regimes. 

Whilst the proliferation of online business models present opportunities for consumer savings by unlocking new markets, they are also, simultaneously, exposing shoppers to staggering quantities of potentially dangerous goods. For example, our investigations and product testing have repeatedly shown systemic product safety failures, which highlighted regulatory gaps and inconsistencies in crucial areas of protection including the use of these new online business models.

Bringing products to market

It follows that we support several aspects of the government's proposals on bringing products to market that make it easier for businesses to understand safety requirements, as these are likely to promote innovation, choice, and lead to safer products for consumers. However, our responses to this section of the consultation place some qualifications to this support. For example, we believe that the proposed shift to a hazard-based system should be cautious given the diversity of businesses within scope and their varying capabilities and require an approach where the responsibility is split in a balanced way between the regulator and the business. This will help guard against increased risks from too much emphasis on self-regulation or reliance on voluntary standards or guidance over regulation. Measures to introduce e-labelling must be done so with consideration of vulnerable groups and allow for historical misinformation to be retained for the purposes of enforcement and redress. Derogation processes must only be established with safeguards in place to ensure they are not subject to scope creep or serve to undermine the integrity of safety standards more generally. 

Online Supply Chains

Regarding proposals for online supply chains, we strongly support the government's proposals that would place new duties upon online marketplaces including requirements for proactive checks of third-party sellers and for monitoring and scrutiny of listings and taking appropriate action. We also support the proposals to introduce a duty for new business models, particularly online marketplaces, to collaborate with enforcement bodies. While online marketplaces are legally obliged to remove illegal content once they are aware of it, we feel they must become more proactive as our research highlights the scale of unsafe products that are now available on their sites. Our research documents time and again how a shadowy network of alternative sellers can quickly return the same or virtually identical delisted products to market, demonstrating how the reactive approach platforms take is failing consumers. These proposals will go some way to resolving these issues, however, we feel these can go further still to ensure full responsibility and truly proactive business responses as we outline in our response to questions 12, 13 and 14. We also support the enhancement of product safety information, including the requirement for a clear, prominent indication of whether the product has been listed by a third-party seller. 

However, the information requirements must also take into account all relevant items offered by third party sellers and not only high risk products. Steps to improve the integrity of instructions and manuals provided with products should also be taken.

Compliance and enforcement

On compliance and enforcement, we support those initiatives which improve the coordination and sharing of information, which will allow regulators to act quickly and proactively. However, we feel these should have stronger interfaces with international networks. Questions also remain about whether large quantities of unbranded unsafe products can be cross referenced within such systems. We strongly support those proposals which give further powers to enforcement agencies in the case of non-compliance and agree the civil product liability regime should be improved and encompass a better and fairer redress for consumers, especially concerning clarity of liability, burden of proof and the implementation of collective redress procedures for liability cases. There should also be more consideration of technological developments including the security of apps, software, services, and automated systems. We support the consolidation and alignment of enforcement legislation, as they will allow authorities and regulators to act more promptly and proactively to ensure consumers are protected.

Given the speed to which online business models are changing, the proposals will also help to create an enforcement regime which is agile and better able to adapt to changing consumer purchasing habits. In parallel, as new risks emerge, it is important that legislation and standards can be quickly and effectively updated to take these into account and ensure an appropriate level of protection for consumers, particularly if there is a greater reliance on standards. 

We believe that Trading Standards services (TSS) play an important role here, and in responding to enforcement interventions and follow up corrective actions. Regarding the establishment of the OPSS as a single point of contact for notifications of all recalls and serious incidents, we are aware that this may offer a simplification to current processes, however, we are concerned that this information should also flow directly and simultaneously to other enforcement bodies (i.e., TSS) to ensure a rapid response.

Without significant reforms as we outline below in our response, we are concerned that these problems will continue to get worse, exposing more people to serious harm. We believe the Product Safety Review is a vital opportunity to turn the tide by modernising the UK’s product safety regime and closing the large and dangerous gap between protections for products bought on online marketplaces versus high street retailers.