OPSS Product Safety Review: Call for Evidence - Which? response

Summary

Which? welcomes the opportunity to submit comments and evidence to the OPSS Product Safety Review. 

Which? has a long history of supporting product safety through our testing and advocacy. However, in recent years we have been concerned to see the resurgence of product safety issues in both traditional markets and in new online markets where significant gaps in the regime have been exposed. This strategic review is therefore an important opportunity to strengthen and update the product safety regime in the UK - both in terms of the regulatory framework and its approach to compliance and enforcement. This will be crucial for ensuring that consumers can have confidence that the regime is fit for purpose and is dealing effectively with the many challenges facing the system. 

In particular, we would like to highlight the following priorities for the government and OPSS:

• Urgently address the safety of products sold online by making online marketplaces responsible for the safety of all products sold through their platforms.
• Establish the OPSS as an independent statutory body at arms length from government and with a clear focus on consumer safety.
• Clarify the product safety requirements for businesses and provide robust market surveillance and enforcement informed by timely risk assessments that are based on independent expert advice and consumer input.

General comments

The UK’s departure from the EU and the establishment of the OPSS create the opportunity to conduct a thorough review of the product safety regime and deliver necessary reforms to ensure the system is fit for purpose and can proactively respond to market developments and emerging risks. The fundamental principles that underpin the regime are correct, including business responsibilities for placing safe products on the market, and the precautionary principle that requires regulators to put the safety of consumers first, however the nature of products, markets and supply chains have evolved exposing gaps in the regulatory framework and enforcement regime that need to be urgently addressed.

• The Government should establish the OPSS as an independent statutory body. Although governance is not part of the current call for evidence, this is an important part of the regime that should be considered. Whilst the establishment of the OPSS was an important step forward based on the previous situation, to realise its full potential and ensure consumer confidence in the regime, the OPSS should be made an independent statutory agency at arms length from the Government, with a clear unambiguous focus on protecting consumers and the promotion of product safety.
• Ensure the OPSS and trading standards have the structures, resources and powers to effectively monitor compliance and enforce regulations. Many of the issues highlighted in this consultation are national and international issues that require a proactive central authority that can deliver a UK-wide strategic, intelligence-driven approach to regulation, market surveillance and enforcement. To improve accountability and allocation of resources within the product safety system, the OPSS must address the current fragmented system that is too reliant on under-resourced local authority Trading Standards Services and ensure that the necessary skills and expertise are available to underpin compliance and effective challenge. This will include rapidly developing the skills and networks needed to meet new technological challenges. The government should ensure that the OPSS and Trading Standards have the structures, resources and powers to fulfil their roles, including administrative fining powers and the ability to share information about investigations.
• Address the safety of products sold through online marketplaces. Online marketplaces are a mainstream form of retail and our 2019 survey found that more than 90% of the UK population has shopped through an online marketplace in the previous month, with the number of sales accelerating rapidly during the Covid 19 pandemic. However tests conducted by Which? have shown that large numbers of unsafe products continue to be available through these platforms. The Government should make online marketplaces legally responsible for the safety of products sold through their platforms whether they are sold by the company owning the platform or a third party seller.
• Develop an intelligence-led approach for responding to innovation. Consumer confidence supports innovation, however regulations have generally been slow to respond to new developments in consumer markets, increasing the risk of safety incidents that damage trust and confidence. The OPSS should develop a strategy for responding to innovation including the use of market data, and engagement with the Government and external processes, and consumers to understand new developments, and respond quickly to innovation, including introducing regulations or standards to address any safety issues where necessary.
• Align new product security requirements with product safety, including making online marketplaces responsible for the security of all the products they sell. The Government has announced their intention to introduce a Product Security and Telecommunications Infrastructure Bill that will require manufacturers to ensure connected devices have unique passwords, provide security updates and provide a public point of contact to make it simpler for anyone to report a vulnerability. This will help to protect users from hacking and the range of harms that can result including privacy intrusions, online scams and even physical safety risks. The Government should ensure product security legislation is aligned with the approach recommended above with market actors, including online marketplaces, made legally responsible for the security of products that are sold by the company owning the platform or by a third party seller.
• Provide clearer product safety requirements and more robust market surveillance and enforcement. The current system places great reliance on checks and assessments carried out by companies working with a complex web of mandatory product safety regulations and voluntary standards. The OPSS should review this framework with the aim of creating greater clarity about the requirements that products need to meet to ensure consumer safety. There also needs to be more effective independent oversight of the system so that consumers can have confidence that businesses are fulfilling their responsibilities, supported by appropriate expertise.
• Establish a process to deliver more timely risk assessments with input from independent experts and consumers. Risk assessments are critical in ensuring authorities respond appropriately to the risks posed by different products. Following the UK’s departure from the EU, the OPSS should establish a clearer process to deliver more timely risk assessments with input from independent experts, greater consumer engagement and assessments that reflect consumers’ perceptions of risk and the publication of all relevant information. This should include better collection of data and intelligence to identify emerging issues.
• Provide international leadership and cooperation. Alongside business-to-business trade, e-commerce has facilitated a major increase in cross border purchases made by consumers, with 25% of UK online purchases coming from another country where the product may have been produced to different standards. The Government should make international cooperation a priority and play an active role in international standards bodies. This includes developing cooperation agreements with European enforcement networks that the UK had been a member of prior to leaving the EU and using the negotiation of new trade agreements, as well as our membership of regional and international networks such as the OECD and ISO, to raise product safety standards and improve enforcement cooperation. Effective border controls will remain an important part of the product safety regime.