New obligations under the General Product Safety Regulation – not only for online retailers

From 13 December 2024, the General Product Safety Regulation (GPSR, Regulation (EU) 2023/988) will apply in the EEA. The EU is thus taking a further step towards fully harmonised product safety legislation, as the GPSR – in contrast to its predecessor, the Product Safety Directive - applies directly in every member state.

1. Which products are affected?

In principle, the GPSR applies to all consumer products, regardless of whether they are new, used or repaired. Consumer products include all products that are "intended or […] likely, under reasonably foreseeable conditions, to be used by consumers".

Apart from this, the GPSR contains a catalogue of products that are expressly excluded from the scope of application such as medicinal products for human use or food.

=> What about products that are already subject to more specific safety regulations under EU law?

If the EU already stipulates specific safety requirements for products in EU Directives or Regulations, the GPSR only applies in addition to those aspects that are not already covered by such specific regulations. As a consequence, the requirements set out under number 3 below (among others) apply to all consumer products sold in the EEA.

2. Who must comply with the GPSR?

The previous addressees of product safety law remain unchanged by the GPSR and include manufacturers, authorised representatives, importers and distributors. In addition, fulfilment service providers are from now on included among the relevant economic operators. The GPSR also imposes direct obligations on providers of online marketplaces, which is an innovation.

=> What about distributors based outside the EEA?

The scope of application does not depend on the location of the economic operator. The GPSR is applicable on consumer products which are made available on the Union market. This is the case if the product:

• is offered for sale online or through other means of distance sales, and
• the offer is targeted at consumers in the European Union.

=> When are retailers considered manufacturers?

Retailers are considered to be manufacturers if they

• place a product on the market under their own name or trademark, or
• substantially modifies a product and this has an impact on its safety.

3. What obligations apply to all consumer products?

A brief overview of some of the new key obligations is provided below.

(a) Offers in distance sales (Art. 19 GPSR)

One of the most far-reaching new regulations is Article 19 GPSR. By this, the EU introduces additional information obligations which must be observed in every single product offer in distance selling. Every offer must contain the following information:

• Name, postal address and e-mail address of the manufacturer
• If the manufacturer is not established in the EU: Name, postal address and e-mail address of the economic operator
• Pictures of the product and information about the product type
• Warnings or safety information in a language that is easy for consumers to understand.

=> These warnings and safety information must also be affixed to the product or packaging or enclosed in an accompanying document.

(b) Obligation to report accidents (Art. 20 GPSR)

In the event that a product causes an accident, the manufacturer (or competent economic operator) must immediately report this to the competent authorities of the EU Member State where the accident has occurred via the Safety Business Gateway as soon as they become aware of it and also co-operate with the authorities after the notification.

Importers and distributors which have knowledge of an accident must inform the manufacturer of the accident immediately and, if so instructed by the manufacturer instructions, report the accident instead of the manufacturer.

(c) Recall notice or safety warning (Art. 35, 36 GPSR)

The responsible economic operator must inform the affected consumers of a product recall or a safety alert directly, in easily understandable language and immediately in writing. If not all consumers can be contacted in this way, he must choose another suitable channel to publish a recall notice or safety alert with the widest reach possible.

(d) Remedies in the event of a product safety recall (Art. 37 GPSR)

In the case of a product safety recall initiated by an economic operator, additional requirements apply. The recall must not only comply with the detailed requirements regarding the content of the recall notice, but the responsible economic operators must also offer the customers the choice between at least two of the following remedies free of charge:

• Repair of the recalled product,
• Replacement of the recalled product with a safe one of the same type and at least the same value and quality, or
• Adequate refund of the value of the recalled product (at least equal to the price paid by the consumer).

(e) Modernisation of the aspects relevant for assessing the safety of products (Art. 6 GPSR)

The EU has modernised and expanded the aspects relevant, when assessing the safety of products.

Among others, it is now relevant whether "the appearance of the product [...] is likely to lead consumers to use the product in a way different to what it was designed for", or to assess whether there are any "cybersecurity features necessary to protect the product [...]" or any "evolving, learning and predictive functionalities of the product".

4. Indication of the manufacturer's e-mail address on the product itself

The labelling requirements for products that were not previously subject to more specific harmonised regulations have also been extended.

In addition to the previously known labelling requirements, the manufacturer must now state its name, postal address and e-mail address on the product itself if possible. Only if this is not possible, the information can be provided on the packaging or in a document enclosed with the product.

These obligations apply not only to the manufacturer, but also to the importer, if the manufacturer is based outside the EU.

5. New obligations for manufacturers of products that are not yet subject to harmonisation

In addition to labelling requirements, manufacturers are also subject to other new obligations in relation to consumer products that have not previously been subject to more specific harmonised regulations. These include, among others:

• Obligation to carry out an internal risk analysis and to prepare technical documentation (with detailed risk analysis) for each consumer product;
• Obligation to make communication channels publicly available (telephone numbers, e-mail addresses or on the website) through which consumers can submit complaints and, if necessary, obtain information about any accidents or safety issues,
• Duty to investigate complaints and keep an internal register of those complaints.

The importer has the corresponding obligations to check compliance by the manufacturer as well as his own investigation obligations in the event of accidents.

6. New obligations for providers of online marketplaces (Art. 22 GPSR)

Providers of online marketplaces must also fulfil a whole range of new specific obligations. These include, among others:

• Establishment of a single point of contact for authorities and customer enquiries,
• Recording of product and customer information,
• Registration on and use of the Safety Business Gateway
• Comprehensive reporting and cooperation obligations vis-à-vis market surveillance authorities and other economic operators, in particular the obligation to respond to market surveillance orders within two working days and
• Establishment of an internal processes to ensure compliance with the requirements of the GPSR

7. Safety Gate Rapid Alert System and Safety Business Gateway (Art. 25 et seq. GPSR)

Two portals of the EU Commission are intended to enable the quick and easy exchange of information regarding safety-relevant information on products in the EU:

• The Safety Gate Portal for the public and market surveillance authorities;
• The Safety Business Gateway, a portal that enables economic operators and providers of online marketplaces to easily provide market surveillance authorities and consumers with information in accordance with the requirements of the GPSR.

Contacts 

Judica Trieglaff is an Associate in Fieldfisher's Hamburg office and advises in the Commercial sector. The focus of her work is on Commercial and Distribution Law. She advises international companies on contractual relationships within supply chains as well as distribution to consumers. 

Sara Bandehzadeh, LL.M. (San Francisco) is a Partner in Fieldfisher's Hamburg office and advises on all aspects of Corporate and Commercial Law, with a focus on Commercial and Distribution Law in recent years.

Alice Zinnecker, LL.M. (Glasgow) is an Associate in Fieldfisher's Hamburg office and advises in the Commercial sector. She advises national and international companies on all issues of Commercial and Distribution Law. Her work focuses on the contractual relationships of our clients within the supply chain and with customers.