Blog Bike Europe: Some version of the truth

By Rutger Oldenhuis LLM

“I have always told you some version of the truth”, Jack Nicholson said to Diane Keaton in one of my favourite comedies “Something’s gotta give”. But it could very well have been a lawyer who said it. Indeed, attorneys-at-law are trained to defend your version of the truth, being supported by laws that often leave room for various interpretations.

It’s no surprise that even judges often argue about the legal truth. During my career as inhouse lawyer, one of my main tasks was to give as little work to attorneys-at-law and judges as possible. Mitigating legal risks (compliance) was key. Anti-trust, privacy, data protection, intellectual property, transfer pricing, ESG, anti-bribery and corruption. And last but not least: product safety and product compliance.

A product is assumed to be safe if it complies with relevant European or national legislation. Next to that, a product is assumed to be safe if it complies with a relevant harmonized standard. According to the European Commission, complying with harmonized standards is the safest way to demonstrate that your products comply with mandatory legal requirements. Producers should take their responsibility and allocate sufficient resources to ensure their products are safe and compliant when placing them on the market. Sometimes that is easier said than done. When I checked my son’s field hockey shoes for their size, I noticed the mandatory shoe labelling was missing. And too often I see products that are missing mandatory CE marking. Some authorities would love to seize those products if they get the chance.

But it takes two to tango. Legislators on their turn should help producers, e.g. by making laws that leave as little room for interpretation as possible. Taking UV protective clothing as an example. In the guidelines of the Personal Protective Equipment Regulation (PPER) the risk of UV protective clothing is classified as Category I, since it is regarded as an “atmospheric condition that is not of an extreme nature”. But the same guidelines literally say that “natural UV-radiation (sunlight) is not an atmospheric condition”, which would mean UV protective clothing should be classified in Category II. Category II products require a far more burdensome conformity assessment than Category I. So which version of the truth is true?

Despite the different conformity assessments, both Category I and II products require CE marking. A small market research revealed not all UV protective clothing (including bicycle clothing) has the required CE marking, which raises the question if all brands are aware of the applicability of the PPER in the first place. This would not be too worrying if only e-labelling was accepted as a means to demonstrate compliance. Labelling changes could be made more easily, e.g. in case of correcting a missing CE marking.

The European Union however is a very slow mover when it concerns e-labelling. One of the arguments that is often heard, is that today still a substantial part of the consumers is digital illiterate. But for the same reasoning: should we then not provide written product information since a substantial part of the population is illiterate? Maybe I’m too simple-minded, but digital illiterates will by definition not buy a product online. They will buy it in a brick and mortar store. It would be fairly easy to offer a printing solution in a shop, either at the checkout or through QR scanners in the shop. Product information would be up-to-date and printing would only be necessary in the local language. If a QR code works for Corona, what’s holding back the European Commission to adopt e-labelling?

“The truth doesn’t have versions”, Diane Keaton replied to Jack Nicholson. Lawyers know better, and a QR code may show different versions of the same truth, depending on the user. One of my favourite albums is “This Is My Truth. Tell Me Yours” by the Manic Street Preachers. And that’s another way of putting it.