Digitally Connected Products to Account for Risks to Mental Health

As noted by the European Commission in its impact assessment, emerging digital technologies, most notably AI, are still not considered mature. Furthermore, there are risks associated with software in products, which may change or evolve over time. Consequently, the GPSR mandates that products must remain safe throughout their entire expected lifecycle.

One of the most notable conditions introduced by the GPSR is the broadened definition of health. In defining a “safe” product, the GPSR refers to the World Health Organization’s definition of health, which includes a state of mental and social well-being. This is a fitting development for modern society – but what does this new definition imply? It’s understood that new technology can pose risks to consumers; for example, a smartphone might lead to sleep deprivation due to algorithms that encourage excessive scrolling. This risk is heightened for vulnerable consumers, such as children. However, this fact does not in itself correlate to the product's connectivity, whereas on the other hand, there are no measures adopted to mitigate that risk. It remains to be determined how far this can go in practice. 

Under the GPSR, all “economic operators” are required to meet general safety requirements. This term encompasses manufacturers, authorized representatives, importers, and distributors, and specific obligations apply at each level of the supply chain. Notably, providers of online marketplaces that allows for distance sales must also establish internal processes and procedures to ensure GPSR compliance. This includes, for example, cooperating in the effective recall of a product and setting up notification procedures for reporting product deficiencies without delay.

It is worth noting that the GPSR allows for consumers to enforce their rights through the Representative Actions Directive (EU) 2020/1828, which entered into application at a national level on 25 June 2023. Thus, we can expect for an increase in product liability related class actions – and, hopefully, some clarity on the matter of what is considered safe.