EU product safety law going mental

By Rutger Oldenhuis LLM

In my previous blog post, I mentioned that I was in ongoing discussions with the EU Commission about the snag that I found in the new EU General Product Safety Regulation (GPSR). At the time of writing, I am still awaiting a response from the unit responsible for the automotive industry. I can understand that they might need some time to grasp the potential implications of the snag. Coincidentally, I am currently assisting an automotive client in developing a recall procedure. Naturally, I want this procedure to be future-proof, hence, to comply with the GPSR. However, this presents a dilemma. Today, automotive recall procedures typically require customers to schedule appointments with dealers for repairs. Pursuant to the GPSR, a dangerous vehicle, being non-portable, must be collected from the customer directly. It would be helpful if the EU Commission could clarify whether this new approach is strictly necessary or whether there is room for proportionality.

In addition to the far-reaching provisions on recall remedies, the GPSR contains many other provisions that go far beyond the current EU General Product Safety Directive (GPSD), which will be food for many more blogs to come. For example, the GPSR adopts the WHO’s definition of ‘health’, which states: “The World Health Organization defines ‘health’ as a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity”. As a result, the concept of ‘product safety’ acquires a more expansive meaning and a new dimension. However, it is not an entirely new phenomenon, which can be demonstrated by the following examples. A Dutch tableware company introduced a new product line called ‘Dutch Glory’, featuring traditional Dutch icons such as pancakes, cheese, clogs, and tulips. The problem was that it also featured an illustration of a smiling Anne Frank. After facing criticism, the company removed the products from the market. Another example is a play clay manufacturer who withdrew a “phallic-shaped toy” from the market in response to parental complaints. Given the GPSR’s extensive interpretation of safety and health, we can anticipate an increase in similar recalls.

The GPSR also places a greater emphasis on risk assessment compared to the GPSD. Unless already addressed by Union harmonisation legislation, the GPSR mandates that manufacturers conduct an internal risk analysis and compile technical documentation. This means that a manufacturer must perform a risk analysis and prepare technical documentation before introducing a product to the market in almost all cases. With the adoption of the WHO’s definition of ‘health’, the risk assessment must also incorporate ‘mental health’ considerations. The GPSR, for instance, specifies that a risk assessment “[…] should take into account the health risk posed by digitally connected products, including their impact on mental health, particularly for vulnerable consumers such as children”. This expanded risk assessment approach may influence how we evaluate the risks associated with, for example, gaming, social media, and even emerging platforms like the metaverse. The bicycle industry should evaluate how the new safety principle of the GPSR applies to their specific circumstances and determine its relevance and potential impact.

In the meantime, I hope that the European Commission will soon be able give guidance on the interpretation of the new recall measures for non-portable dangerous products. If there would be room for proportionality, that would be extremely helpful for my clients’ recall procedure. And good for their health.