9th edition – March 2021

Here's the next edition of our monthly bite-sized digest, Productwise 3-2-1  where each month, we'll be bringing to the top of your inbox (and your agenda):

  • 3 key takeaways from the past month
  • 2 hotbed issues you should keep your eye on
  • 1 practice tip to keep you at the top of your game

This month it's all about ICPHSO's 2021 Annual Virtual Meeting and Symposium that took place on 22-26 February 2021 – with updates from the US CPSC, sustainability, accessibility, the upcoming EU legislative proposal on regulating AI and a reminder about the incoming obligation to identify a responsible economic operator for certain products sold in the EU under the Goods Package that applies from July this year.

3 top things we heard at ICPHSO

  • Updates from the CPSC. During the CPSC day, we heard from Robert Adler, Acting CPSC Chairman, Mary Boyle, Executive Director of the CPSC, Shelby Mathis, Small Business Ombudsman along with other CPSC staffers. During his keynote address, Robert Alder told attendees about a request for a substantial increase in funding for the CPSC that he made in a letter to the Office of Management and Budget. He's asking for an ongoing budget of roughly US $280 million, with a one-time adjustment cost of $89 million. Robert Alder explained that the added resources would be used to tackle the unfunded mandates given to the CPSC in the recently enacted Omnibus Covid Relief Act, which include the areas of imports, flame arrestors for portable fuel containers, an upholstered furniture standard and carbon monoxide detectors. We heard that whilst the new Covid Relief Bill currently pending before Congress includes funding for these mandates, that funding will be insufficient to solve the CPSC's "perennial budget problems". The additional funds requested would also be put towards the recently approved FY 2021 Operating Plan that Robert Alder described as ambitious as any put forward during his time as a Commissioner. It includes projects on mandatory standards for infant sleep products, crib mattresses, crib bumpers, clothing storage units, carbon monoxide hazards, high-power magnets, as well as Organohalogen Flame Retardants (OFRs), table saws, and window coverings (among others). Voluntary standards projects include booster seats, child resistant packaging, carriages and strollers, infant bath tubs, battery fires, clothes dryer fires, flammable refrigerants, laundry liquid packages plus many more. Robert Alder also called for significant legislative changes on two issues that he considers are an impediment to the CPSC's mission: 1) to remove the restrictions placed on the CPSC disclosing information contained in section 6(b) of the Consumer Product Safety Act; and 2) to remove some of the steps imposed on the CPSC's rule making process, that in his view, have led to fewer rules with "no discernible quality improvement". We also heard that one of the priorities for the CPSC is to approach product safety from a variety of diverse viewpoints (e.g. how might certain hazards exist for some vulnerable populations more than others, how barriers like socio-economic status affect safety messages and what methods can be used to reach marginalised and underserved communities). Giving an indication of a harder line on enforcement in the future, Robert Alder noted that the agency will be using its dedicated Compliance and Enforcement team "to their fullest" and described civil penalties, unilateral press releases and administrative litigation as tools that the CPSC is "obligated to use when warranted, and I'm not going to forget about them". Looking ahead, the FY2022 agenda and priorities will be reviewed at a virtual hearing on 7 April 2021, with comments due by 17 March 2021. We also heard from CPSC staffers that SaferProducts.gov and CPSC.gov will be redesigned this year to make the websites easier to navigate and increase the number of consumer reports.
  • Sustainability firmly on the international agenda. A number of sessions explored sustainability issues. "The Circular Economy and Product Safety – State of New Approaches and Product Design Considerations" breakout session was moderated by Matt Howsare of Cooley and took us on a whistle-stop tour of the current state of play and the various legislative and policy initiatives coming down the line in the EU and US. Looking ahead, a number of proposals under the Green Deal and Circular Economy Action Plan are taking shape in the EU, including measures looking to extend the "right to repair" to additional product groups and enhanced consumer information requirements (e.g. on a product's lifespan and repairability). Following Brexit, it's been reported that the UK is also looking at the "right to repair" and mandatory labelling on repairability. Whilst in the US there are numerous "right to repair" bills. The session "Working Together to Solve Sustainability: A Case Study" looked at a collaboration in the apparel industry called the Zero Discharge of Hazardous Chemicals (ZDHC) group formed in response to a challenge from Greenpeace calling for the textile industry to eliminate hazardous chemicals from wastewater discharge – it's a great example of a multi-stakeholder approach working to find solutions to challenges that are too big for individual companies to face alone. Another breakout session focused on plastics, and looked at replacements for traditional plastic materials, as well as mechanical and chemical recycling. A key takeaway was that companies should be aware that there are trade-offs with sustainable solutions and need to dig deep, ask lots of questions and have open discussions about what areas can and cannot be compromised on.
  • European Accessibility Act. The plenary session "Safety for All! How Empowering Those with Disabilities to Use Technology is a Win for Consumer Health and Safety" moderated by Cooley's Ed Turtle looked at the European Accessibility Act, which represents the advent of accessibility requirements becoming part of the European product compliance and safety regime. We heard that accessibility is likely to be a hot topic for product safety in all jurisdictions going forwards, with consumers, regulators and product manufacturers all committed to improving the product experience – accessibility is crucial for all of these stakeholders. Panellists explained that inclusive design should be considered and incorporated at the beginning of the design process, rather than an afterthought, particularly in the context of new technologies where the product might not be contemplated by existing standards and rules. A key takeaway was that businesses looking to sell products that fall within scope of the new requirements in the EU should start considering if they need to make changes now.  To find out more, read out Bitesize blog on the European Accessibility Act here. 

2 things from ICPHSO to look out for

  • Upcoming EU legislative proposal on regulating AI, expected 21 April 2021. The session "Dawn of AI Laws – How Europe's Move into AI Regulation Will Impact Consumer Safety Around the World" looked at the challenges around regulating AI by a panel that featured Pinuccia Contino, Head of Unit, Product Safety and Rapid Alert System, European Commission and Cooley's own Rod Freeman. There was a lively discussion surrounding defining AI, whether products that include a "pinch of AI" should fall within scope and the pros and cons of a one-size fits all horizontal regulation with a specific regime for "high-risk" AI applications currently under consideration in the EU (see our blogs here and here). Many of the uncertainties surrounding AI also apply to other products, for example over-the-air software updates that may introduce new features in a device already in the hands of consumers. Another challenge for lawmakers is identifying new consumer safety risks for AI powered products. There has been much debate surrounding cybersecurity threats and mental health risks. Where the lawmakers land on these and other issues will have potential implications for a broader range of products and may follow through to reviews of other product safety legislation currently taking place in the EU. We're expecting the European Commission to publish its legislative proposal on regulating AI on 21 April 2021 (see our blog here).
  • Upcoming requirement to identify a responsible economic operator for certain products sold in the EU under the Goods Package applies July 2021. One of the breakout sessions tackled the new EU Regulation on market surveillance and compliance of products (EU) 2019/1020 (also known as the "Goods Package"). As we've blogged previously, the new Regulation introduces a requirement, that from 16 July 2021 for certain product categories (including toys, electrical and electronic devices, constructions products, PPE and machinery, among others), there must be a designated economic operator established in the EU who is responsible for various tasks related to product safety and compliance. Associated labelling requirements to provide certain information about the responsible economic operator have also been introduced. We heard from panelists at ICPHSO that the largest hurdle for businesses under the Regulation was defining an economic operator in the EU, and authorities have indicated that products which carry a greater risk (such as toys and electronic goods), will be under earlier scrutiny to comply. This session was a timely reminder for businesses that place affected products on the EU market to make sure they understand their legal obligations and assess whether they need to take any steps (for example, businesses may need to take action where they don't currently identify a responsible economic operator established in the EU or they rely on an economic operator established in the United Kingdom). To find out more read our Bitesize blog on the Goods Package here or get in touch with the Cooley team.

1 top practice tip

  • Save the date for upcoming ICPHSO events. ICPHSO (the International Consumer Product Health and Safety Organization) is an international, multi-stakeholder forum for product safety stakeholders to learn, network and share information. ICPHSO typically hosts three major events each year – an Annual Symposium in the US, an International Symposium outside of the US and a regional training workshop based in North America. The events are always a great opportunity to hear directly from regulators and share ideas with other product safety professionals.  ICPHSO's 2021 Virtual Regional Workshop will be held on 23 June 2021, followed by ICPHSO's 2021 International Symposium that will also be virtual and held later in the year. Visit ICPHSO's website here to find out more and how you can get involved.

Any comments or feedback, then please feel free to contact the authors, or any of your usual contacts within the team, who would love to hear from you.

Best wishes,

The Cooley Products Team

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