On 29 June 2023, the Office for Product Safety Standards (OPSS) published an updated version of its enforcement policy in relation to the safety of consumer products, together with updated guidance on how to appeal an OPSS enforcement decision. As many businesses involved in the construction industry begin to adjust to the recent changes under the Building Safety Act, the OPSS enforcement update is a timely reminder of the increasingly ubiquitous concern with safety in the industry, and the evermore severe repercussions for failing to address safety issues.
What is the OPSS and how does it affect the construction industry?
The Office for Product Safety and Standards (OPSS) is the national regulatory body for all consumer products (except vehicles, medicines and food). The OPSS requires the businesses it regulates and the products they manufacture and supply to comply with various safety standards, and works with the British Standards Institution and the United Kingdom Accreditation Service to set the standards for manufacture of safe products and product testing. The OPSS publishes an enforcement policy which details the approach to addressing non-compliance with these standards.
Products utilised at all stages of a construction project are affected and it is therefore essential for those involved in any form of construction works to be aware of the standards their products and product testing must be held to under various legislation and regulations.
Updates to the OPSS enforcement policy
On 29 June 2023, the OPSS published an updated version of its enforcement policy, together with updated guidance on how to appeal an OPSS enforcement decision.
Significantly, the OPSS states that it will take proportionate action in response to reported non-compliance. In practice, this means that each occurrence of non-compliance will be looked at individually and the response in each case will reflect various factors, including:
- the actual or potential impact of the product safety risk;
- any action already taken to prevent non-compliance;
- the business's history in relation to occurrences of non-compliance, and its willingness and ability to address safety concerns;
- the impact of the proposed action on the business and others; and
- wider levels of awareness of the requirements of relevant legislation.
With consideration of these factors, the OPSS should in each case explain to the business the precise nature of the non-compliance, the remediation required, and provide written details of rights of appeal. In less serious causes, the OPSS may issue written warnings and obtain undertakings from businesses to take specific actions.
Failure to correct non-compliance
If the business cannot or will not comply in the required timeframe and the safety risk is sufficiently serious, the OPSS has various statutory powers to enable its officers to step in to prevent risk. These powers range from issuing of statutory notices, which may require an action or prohibit certain activities such as supplying non-compliant products, to issuing of fines and criminal proceedings. While the OPSS is committing to acting proportionately, it is therefore clear that issues of safety will not be taken lightly where a business is flagrantly failing to comply.
Appealing a decision
The OPSS operates under various legislation and rights to appeal will vary in each case. As such, it is not possible to summarise one simple approach to challenging a decision. However, as above, when a business is notified of non-compliance by the OPSS, it is required to give written details as to any right of appeal. This may mean appealing through the relevant court, at a tribunal or by making representations to the Secretary of State.
Conclusion
In considering product safety issues and its response to these, it is clear that the OPSS takes into account the relative seriousness of any non-compliance, together with the reasons for its occurrence and the relevant business's willingness to rectify the safety issue. The OPSS aims to work with businesses to support productivity and growth, but takes its promise to consumers to uphold safety standards extremely seriously. As such, it is essential that all businesses stay aware of the safety requirements of their products, and act quickly and proportionately where a concern is raised.
However, given the serious implications of being found to be non-compliant and the impact that this may have on a business's reputation and finances, it is also important to be proactive about challenging an incorrect decision in this regard.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
