New Product Regulation and Metrology Bill

In its current form, the Bill is designed to be a framework instrument that will enable the Government to make a range of regulations that could lead to significant changes to the UK’s product safety and compliance framework. As anticipated, the current Bill addresses the evolving landscape of product manufacturing, distribution, and market entry post-Brexit, with an emphasis on improving consumer protection, enhancing regulatory clarity, and ensuring businesses remain competitive. Once passed, the legislation will be a significant tool for the UK Government to ensure that aspects of the EU’s new Product Liability Directive are implemented into UK legislation where it is in the best interests of UK businesses and consumers to do so.

Key Points from the Product Regulation and Metrology Bill:

1. Addressing emerging risks: The Bill is designed to enable the Government to update relevant product regulations in response to “modern day safety issues” (as outlined in its explanatory notes). It does this by delegating powers to the Government to make regulations for the purpose of reducing or mitigating product risks or ensuring that products operate efficiently or effectively. “Products” are limited to tangible items resulting from a method of production. It acknowledges the need for future proofing by keeping the regulatory framework agile and adaptable to advances in technology, for example by being able to address present-day risks with products that rely on AI and with online marketplace activity. By doing so, the legislation aims to ensure that high product standards are maintained, supporting both business innovation and economic growth.
2. Maintaining regulatory leadership: While the Bill continues to build out an independent UK regime post-Brexit, it also enables the creation of regulations that correspond to or mirror EU law. To the extent that the purpose of an EU law is to reduce or mitigate product risks or to ensure that products operate efficiently or effectively, then it would be within the Government’s powers to implement similar regulations pursuant to the above (including specific mention of regulations that recognise compliance with certain EU laws as meeting UK product requirements). The Bill also goes a step further in allowing the Government to implement regulations that correspond to EU laws whose purpose is reducing or mitigating the environmental impact of products. According to the explanatory notes, this approach reflects the Government's intention to “prevent additional costs for businesses” and to provide greater regulatory stability. This suggests a willingness to be pragmatic and to not diverge from EU law without good reason, but on a limited basis and without the ability for full scale copying of EU laws into UK law.
3. Clarifying supply chain responsibilities: The Bill aims to identify and to respond to new and emerging business models in supply chains. In particular, the Government recognises (as outlined in its delegated powers memorandum) that the application of product law to online marketplaces has been the subject of legal challenge over time. The Bill therefore allows the Government to regulate the marketing of products through an online marketplace, which is defined as a website, mobile application, or any other platform over the internet which facilitates the marketing of products in the UK. The Bill also allows the Government flexibility to amend this definition, both to adapt to new business models and to respond to deliberate attempts to evade regulation.
4. Enhanced compliance and enforcement: The Bill grants regulators new powers to strengthen compliance monitoring, investigatory capabilities, and enforcement actions, providing the Government with flexibility to respond to evolving threats. It also facilitates data sharing between regulators and relevant authorities, ensuring more coordinated oversight. The Bill allows for the introduction of civil sanctions and the creation of criminal offences, with the latter carrying penalties of fines or up to two years’ imprisonment on indictment. The provision for new civil sanctions and criminal offences introduces the possibility that they will be accompanied by burden of proof and liability standards that mirror those introduced in the new EU Product Liability Directive—however, this would only be in relation to steps taken by regulators and authorities as the Bill does not address consumer action. Additionally, provisions are made for authorities to recover costs incurred in performing their regulatory duties.
5. Transparency in creating new regulations: The Government has indicated its intention to publish factsheets to set out its intentions for developing further regulations as well as case studies to demonstrate examples of emerging threats and agreed policy positions on how to approach them (as outlined in its delegated powers memorandum). This signals a desire to provide businesses with sufficient notice or even an opportunity to respond to proposed new rules.

Comment

The Bill marks a crucial development for businesses operating in the UK product market, reinforcing the Government’s commitment to modernising product safety regulations while maintaining consumer confidence and protecting public safety. We recommend that all manufacturers regularly review their compliance protocols in light of these impending changes.

As of 20 November 2024, the Bill is at the Committee stage in the House of Lords and it is expected that true impact of the Bill will become more evident once it passes through the House of Commons and eventually when secondary legislation is drafted and implemented next year.

We will continue to monitor the Bill’s progression and evolving landscape and to advise our clients accordingly. We recommend that our clients be prepared for any changes and that they be proactive by keeping up with the latest developments in EU product safety law. To discuss how the Bill may impact your business, please do not hesitate to contact a member of the Products Law team.

Authored by Valerie Kenyon, Matthew Felwick, Matt Aleksic, Farheen Ahmed, and Aimee Fullen.