Smartphones are the new cigarettes

By Rutger Oldenhuis LLM – Published in Bike Europe Magazine 6-2023

Interesting news from Recall Land. The safety of Apple’s iPhone 12 has come under scrutiny, as per findings from French regulatory authorities. Their testing revealed that this particular smartphone model did not comply with the legal limits set for radiation emissions. This news is notable not only for the reported safety issue, but perhaps even more so for the safety issues that went unreported. The question is how long smartphone makers and app builders can get away with those safety risks. With the impending EU General Product Safety Regulation (GPSR), smartphone manufacturers and app developers may face a rise in product safety and liability claims. That is, unless they make significant alterations to the design and functionality of their products. Or should they?

While offering numerous benefits and conveniences, smartphones have also introduced various concerns, especially when it comes to their influence on our lives and the lives of children. An increasing number of studies are surfacing, revealing how smartphones have significantly altered our lives, often in ways that aren’t positive. Read along with me: shortened attention spans, sleep disruption, impaired social skills, mental health issues, physical health issues, decreased academic performance, cyberbullying, addiction, decreased creativity and imagination, reduced memory and learning, decreased creativity and imagination, to mention just a ‘few’ examples. And I haven’t even mentioned the number of injuries as a result of distracted driving. In the USA, that number is not far behind the number of deaths caused by smoking.

It’s no wonder that there is a growing demand for action to address these issues. Schools banning mobile phones serve as an example of this trend. Interestingly, European Parliament Member Kim van Sparrentak is leading an initiative to prohibit the addictive design practices used by smartphone manufacturers and app developers. I highly recommend reading her comprehensive report on the adverse effects of smartphones, supported by scientific sources.^[1]

The draft report suggests that new EU rules are needed to make smartphones and apps less addictive, but I wonder if that is necessary. With the current EU General Product Safety Directive we already have a legal safety net in place to ban unsafe consumer products from the EU market. And to avoid any doubt, under the upcoming GPSR, the term ‘product safety’ takes on a much broader meaning and refers to the WHO’s definition of ‘health’. The WHO defines ‘health’ as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. Under the GPSR, when assessing the safety of digitally connected products likely to have an impact on children, manufacturers should ensure that the products they make available on the market meet the highest standards of safety, security and privacy by design, in the best interests of children. Software (embedded and standalone) also falls under the product definition of the GPSR. I don’t think it would be difficult for an average lawyer to demonstrate that certain app developers have intentionally made their products addictive and thus harmful. I also suspect that establishing causality between the use of these apps and health damage will not be challenging.

However, just like with cigarettes and alcohol, I am afraid the damage has already been done. Society can no longer function without smartphones. I wouldn’t be surprised if we find ourselves facing excise duties on smartphones in the near future, while being cautioned about their potential risks.

When I visited a supermarket in Germany earlier this year, my 6-year-old son noticed the rather explicit pictures with health warnings on cigarette packages and asked me: “Dad, what is THAT?” “Uhhm, yeah, that is to warn people that smoking is very harmful to your health.” “But dad, that’s REALLY stupid. If you know a product is harmful, why would you sell it???” I rest my case.

[1] DRAFT REPORT on addictive design of online services and consumer protection in the EU single market (2023/2043(INI)).