An article by Cameron Crowe KC and Robin Kingham.
Introduction
The Government is currently consulting on wholesale reform of product safety regulation. The consultations are framed as a necessary update to an ageing regime.
However, the proposals do not simply revise the content of product safety law. They propose to restructure the system through which compliance is assessed, monitored, and enforced. The scope of regulation is widened. Safety is treated as something that can change over time. Responsibility is pushed further along increasingly complex supply chains. Most importantly, new enforcement powers may significantly increase the risk profile for businesses. The consultation process therefore matters for reasons that go well beyond the modernisation and consolidation of the many disparate pieces of current legislation.
In regulatory practice, it is enforcement mechanics that tend to do the real work. Investigatory powers, penalties, and routes of appeal are often the key battle ground. That has been the experience in other areas of consumer law, and there is no reason to think product safety will be any different.
For regulators, advisers, and businesses alike, the consequences of these choices are likely to be felt for many years.
Expanding the perimeter
One of the less heralded but more consequential aspects of the proposed framework is the way it redraws the perimeter of regulatory responsibility. The familiar categories used under the General Product Safety Regulations 2005 are replaced with a broader set of regulated persons: producers, onward suppliers and online marketplaces.
The concept of the “producer” is extended in ways that matter. Responsibility is no longer fixed solely by reference to who manufactured a physical product, or who first placed it on the UK market. Digital modification can itself generate producer responsibility. Where safety is altered through software or other digital means, the entity controlling that modification may assume regulatory responsibility even though the original product was compliant when sold.
“Onward suppliers” are defined broadly and include businesses such as fulfilment and logistics providers. Their duties are framed around due care, but they are no longer peripheral to the safety regime. This closes long‑recognised gaps in enforcement and reflects a view that commercial participation in supply is itself something worthy of regulation.
Perhaps the most notable shift concerns online marketplaces. For the first time, they are regulated as a distinct category of regulated person. The proposed duties are proactive. Marketplaces are expected to take steps to prevent unsafe products from appearing on their platforms, to identify them when they do, and to act decisively once risks are known.
The cumulative effect is a regime with a much broader reach than its predecessor. Businesses that would not previously have regarded themselves as regulated persons will now find themselves squarely within scope. That expansion sets the context for the enforcement reforms that sit behind the framework, and it is those enforcement mechanics that will determine how these new responsibilities are experienced in practice.
Enforcement reform and regulatory risk
The most significant change proposed by the consultations is not to the substantive definition of product safety, but to how breaches of product safety law are to be enforced. The reforms envisage a consolidated enforcement toolkit which moves decisively away from criminal prosecution as the default response. That is a strategic shift, and one with far‑reaching consequences.
Criminal enforcement will remain available, and it is likely to continue to be used for deliberate or egregious breaches. But the clear direction of travel is towards administrative enforcement backed by civil monetary penalties.
This approach mirrors recent developments in other areas of regulatory practice, most notably consumer law enforcement by the Competition and Markets Authority (CMA). There, direct enforcement powers and civil penalties have transformed the regulatory landscape in consumer law. The emphasis has moved from the courts to the regulator’s own decision‑making process.
Civil penalties can be imposed more quickly and with greater flexibility than criminal sanctions. They also allow regulators to target conduct that sits uncomfortably with the criminal standard of proof. The result is a broader and more responsive system of enforcement, but one that concentrates power in the hands of the regulator.
The potential use of turnover‑based penalties sharpens that effect. If penalties are calibrated by reference to global or group turnover (as they now are in CMA consumer enforcement cases), product safety enforcement will cease to be a routine compliance issue. For large organisations, the sums at stake can be substantial, and the financial exposure can exceed that associated with many traditional criminal prosecutions (even under modern sentencing practices applicable to Very Large Organisations).
Direct enforcement models also change the role of the courts. Under this approach, regulators investigate, determine liability, and set penalties themselves. Judicial oversight is available only on appeal, and often on a constrained basis. That reorders the traditional relationship between regulator, regulated party, and court.
Early experience in other regimes suggests that these changes affect how investigations are conducted, how information is provided, and how challenges are pursued. Businesses tend to engage earlier and more defensively. Regulators carry greater responsibility for ensuring procedural fairness within their own processes. The relationship becomes, perhaps, more overtly adversarial at an earlier stage.
Product safety enforcement has not historically operated on this footing. The consultation proposals may place it much closer to the model now familiar in consumer and competition law. Whether that shift achieves the intended balance between effective regulation and fair process will depend on how these new powers are framed and exercised.
Unanswered questions
For all the breadth of what is proposed, the consultation leaves some of the most important questions unanswered.
The first concerns the calculation of civil monetary penalties. The consultation does not yet fix the scale of penalties or the basis on which they will be calculated. Options range from fixed or tiered penalties to variable fines. A turnover‑based model would align product safety with other areas of consumer law enforcement, but it would also represent a sharp escalation in financial exposure, particularly for large and multinational businesses.
Second, there is little clarity about appeal routes and standards of review. The consultation does not specify whether appeals against civil penalties would lie to a specialist tribunal or to the courts, nor does it address the intensity of review that would apply. Whether an appeal amounts to a rehearing on the merits, a review of the regulator’s reasoning, or something in between, is critical. These questions go to the heart of procedural fairness and will strongly influence how enforcement decisions are approached and defended in practice.
Finally, there is uncertainty about who will be able to wield these new powers. It remains unclear whether civil monetary penalties will be available only to the Office for Product Safety and Standards or whether local authority Trading Standards will also be empowered to impose them. Trading Standards remain the principal frontline enforcers across many product categories, but their resources and practices vary widely. A mixed enforcement landscape risks inconsistency and unevenness if not carefully designed.
These are all issues that can be addressed, and the fact that they remain open is to be welcomed. The consultation stage is the moment at which these choices can still be influenced. How they are resolved will determine not just how the regime looks on paper, but how it operates in practice once the new powers come into force.
Conclusion
The consultation proposals mark a clear shift in both the ambition and the mechanics of product safety regulation. Much of what will matter in practice—the calculation of civil monetary penalties, appeal rights, and the allocation of enforcement powers—remains to be settled. That makes this consultation phase a genuine opportunity. Responses now can help ensure that the new regime is both effective and workable, and that stronger enforcement powers are matched by appropriate safeguards. For regulators and for those advising or operating within the regime, engagement at this stage is likely to pay dividends once the framework is implemented.
