Update on OPSS Enforcement Policy
UK
Update on OPSS Enforcement Policy
On 30th June 2022, the UK Government Office for Product Safety and Standards (OPSS) released its latest enforcement policy guidelines. The updated enforcement policy is broadly consistent with changes made within European Union Member States as a result of Directive (EU) 2019/2161 which entered into force on 28 May 2022.
According to the updated policy, OPSS will have a timely and proportionate response to matters of non-compliance taking into account the nature of the non-compliance, the seriousness of the risk presented and the circumstances which gave rise to the non-compliance.
In achieving the above, OPSS will consider the impact of the safety issue or non-compliance, the willingness of the business operator towards prevention of non-compliance including past history of the business operator on similar matters, their attitude towards addressing resolution of the non-compliance and their level of awareness of the applicable legislations, steps already taken, and the effect of the required remedial action on the business operator including any resulting deterrent effect on other business operators.
OPSS policy states that they welcome approaches from businesses seeking clarification on compliance issues and will provide support and guidance as applicable including through the Primary Authority process.
The primary aim is to ensure safety of consumers and of the environment and OPSS will work in tandem with the UK Border Agency to prevent non-compliant goods from being placed on the UK market. In addition, OPSS will, where permissible and appropriate, share data on non-compliant products that present risks in markets other than the UK with market surveillance authorities in related markets (e.g. EU).
Penalties for non-compliance include the issuance of statutory warnings, removal of the products from the market, product recall, as well as financial penalties (which may be based on the financial gains made as a result of the non-compliance) and the institution of criminal proceedings which may lead to further monetary penalties and/or imprisonment.
Directive (EU) 2019/2161 gives its Member State market surveillance authorities the powers to take into account mitigating or aggravating circumstances including the frequency of offending by any business and the impact on the consumers affected. The EU Directive also extends its powers to online digital services including those operating online marketplaces as well as those seeking to mislead the consumer as to the relative ranking of a product or service without disclosing the use of a paid service to enhance the prominence of the ranking. In addition the EU Directives also introduce additional responsibilities on the seller to take reasonable and proportionate steps to verify that product reviews submitted by consumers are genuine as well as prohibiting payment for the submission of false reviews or social endorsements to promote a product.
