Product recalls under the GPSR: beware of the snag!

By Rutger Oldenhuis LLM

The ink has yet to dry, but the recently approved text of the long-awaited General Product Safety Regulation (GPSR) will cause quite a stir. The GPSR will replace the now-aging General Product Safety Directive (GPSD) and is expected to come into force at the end of 2024.

Like any other, the bicycle industry should take note of the GPSR now, because the implications will be significant, and infringement may lead to penalties. There is much to say about the new Regulation, but here I will focus on the provisions relevant to product recalls.

Let me start with some interesting statistics that speak for themselves. The word ‘recall’ (in some form) appears 81 times in the GPSR versus 17 times in the GPSD. The word ‘corrective’ (as in ‘corrective measures’) appears 31 times in the GPSR versus 0 times in the GPSR. More importantly, there seems to be a snag that apparently was overlooked by most (if not all) trade associations and other stakeholders during the drafting phase. A snag that can make the burden of a recall even bigger than it already is.

Although certain parts and chapters of the GPSR do not apply to products for which specific harmonised EU regulations already exist, the provisions relevant to product recalls apply to all product categories, unless their applicability is expressly excluded (for example, medicinal products, food and feed). Where European legislation normally excels in vague texts and open norms that need to be further fleshed out by courts, remarkably, the GPSR contains quite detailed recall provisions and instructions, which you would normally expect in the form of a guideline. For example, the GPSR prescribes that the headline of a recall notice must be ‘Product safety recall’. Furthermore, words or expressions such as ‘voluntary’, ‘precautionary’, ‘discretionary’, ‘in rare/specific situations’ as well as indicating that no accidents have been reported, should be omitted. In addition, consumers must be instructed to stop using the product immediately. The latter, in particular, seems very rigid and can potentially have very far-reaching consequences, which – so it seems – were overlooked during the drafting phase of the GPSR, especially when we take a closer look at the legal requirements of recall remedies.

In the event of a recall, the GPSR stipulates that consumers should be given a choice of at least two of the following remedies: repair, replacement, or a refund. Consumers may only be offered one remedy if the other remedies are impossible or disproportionate. The question then, of course, is what is disproportionate; in that respect I also refer to my previous blog that I wrote for Bike Europe. In any case, consumers are always entitled to a refund if the economic operator has not arranged for repair or replacement within a reasonable time without significant inconvenience for the consumer. A possible snag is the provision that prescribes that if products by their nature are not portable, the economic operator must arrange for the collection of that product. If we follow the text of that clause literally, this would mean that, in the event of a recall of an unsafe bicycle, consumers must immediately stop using it and the economic operator must collect the bicycle from the consumer. The question is whether this is really intended. After all, it would also mean that, for example, an unsafe car would have to be collected from consumers. Given the high number of automotive recalls, that would undoubtedly lead to a logistical nightmare and a huge financial burden. The European Automobile Manufacturers’ Association (ACEA) seems to have completely overlooked this in their feedback on the draft text. The only thing they worried about was that, instead of using a picture of an unsafe product, it should also be allowed to use an illustration…