As well as the General Product Safety Regulation, if you are supplying products to consumers in the EEA, you need to be aware of another upcoming new law – the updated Product Liability Directive 2024/2853 (PLD). Although you will be relieved to hear that it only applies to products placed on the EU market on or after 9 December 2026, so you've got some time to prepare. 

The current law is outdated because of digital technology, cybersecurity challenges, new supply models (in particular, online marketplaces allowing consumers to easily buy products from outside the EU) as well as the EU's Circular Economy programme and its emphasis on sustainable products. The PLD aims to update the law to reflect these changes.

The principle remains that if a defective product causes damage, the manufacturer is strictly liable. A product is defective if it doesn't provide the safety the public expects.

The 'development risks' defence remains, meaning manufacturers aren't liable for defects that couldn't have been known at the time of manufacture.

What's new?

• Software, 3D printing files, apps, operating systems and AI systems, and digital services needed to operate a product come within the revised PLD.
• Software developers and providers of digital services that affect the product can be liable for damage caused by a defective product.
• Manufacturers can be liable for harm caused by changes made to products after they have been placed on the market. As an example, this might include changes initiated by a software update. This includes updates supplied by third parties with the manufacturer's authorisation or consent. This means that manufacturers have an obligation to continuously monitor updates and changes.
• If you substantially modify a product, you can be liable if those modifications result in a defective product that causes damage or injury.
• The courts and regulators will consider inter-connectedness, which may include how the product interacts with other software, and cybersecurity requirements, when they are assessing defectiveness.

The PLD also aims to make it easier for people with injuries and other people to claim for the harm they have suffered:

• EU consumers and people injured by a product imported from outside the EU can claim against the importer or the manufacturer's authorised representative in the EU. In addition, in certain cases, they may be able to claim against the online platform or distributor on or via which they bought the product.
• Manufacturers must disclose relevant evidence.
• The time restrictions to bring claims are more flexible and no longer necessarily limited to ten years and the financial threshold for bringing claims under the current law is removed.
• The burden of proof is eased for claimants in complex cases, such as those involving AI.

Damages may be recovered for:

• harm to psychological health; and
• destruction or corruption of data that is not used exclusively for professional purposes.

Online platforms

As mentioned above, online platforms may be liable if for example they act as a fulfilment service provider. However, if they only act as an intermediary, they are covered by the Digital Services Act as long as they do not create the impression that they are a seller or authorised representative.

AI liability

As well as the PLD, the EU has also been discussing the AI Liability Directive to create rules about liability for damage caused by AI. Its key focus is enabling claims by people who are harmed by AI, making it easier to prove causality and liability in cases that involve complex AI systems. It differs from the PLD to the extent that it does not impose strict liability.

The European Parliament and EU Council agreed the text of the AI liability directive at the end of 2023, but since the elections to the European Parliament progress on many legislative initiatives has stalled. However, the European Parliament has indicated that it will resume work on it in January 2025. It is not yet clear how the two directives will work together.

What should I do now?

Although (just under) two years seems like plenty of time, it will be gone in a flash.  So think about planning for it now.  You might want to check things like CE marking and other labelling, if you comply with UK and EU product safety rules such as the General Product Safety Regulation and keep up to date with upcoming changes to UK product safety laws (keep an eye on this page!).  In addition, check your insurance cover and review your current monitoring and recall systems, as well as product tracking, so you know where your products end up and what updates are being made to them. If you need help with the regulatory aspects or with reviewing your contracts with your partners, please get in touch.