Pictured: Paola Sproul and Mark Gibson

The new Product Liability Directive 2024/2853 (new PLD) is now in force with 9th December 2026 as the deadline for EU member states to implement the directive into their national laws. It will apply to products placed on the market after this date. In this article, we will assess how the UK’s current product liability system stacks up against the EU’s shiny new rules.

What’s changing in product liability?

Products aren’t just physical anymore – they now include software, AI, and digital services. These can evolve after you buy them, like software updates or AI systems that adapt and learn new tricks. Products are now capable of being modified by the manufacturer or a third party after they are supplied. The EU’s new PLD is keeping up with the times by expanding the definition of “product” to include software (whether it’s built-in, standalone, or cloud-based), digital files, and related services. It also holds manufacturers accountable for defects that arise after the product is sold, moving away from the old “factory gate” rule.

Online shopping and global supply chains

Online marketplaces have made shopping easier, but they’ve also created a tangled web of supply chains. Sometimes, it’s hard to track down who’s responsible for a faulty product, especially if it’s made by a foreign company. Some online marketplaces are also refusing to be held accountable for unsafe goods sold on their platforms claiming they are not a producer, importer or party to the contract. The new PLD steps in here.

If the manufacturer is not established in the EU, in addition to the current position that importers are liable, the new directive, at Art 8, also provides that further “economic operators” known as “authorised representatives” and “fulfilment service providers” are jointly and severally liable with the third country manufacturer.

An “authorised representative” is defined at Art 4(11) as any natural or legal person established within the Union who has received a written mandate from a manufacturer to act on that manufacturer’s behalf in relation to specified tasks.

A “fulfilment service provider’ is defined at Art 4(13) as any natural or legal person offering, in the course of a commercial activity, at least two of the following services: warehousing, packaging, addressing and dispatching of a product, without having ownership of that product.

The likes of Amazon are arguably caught by both of these definitions as they assist the third country manufacturer with getting the goods into the UK (“authorised representative”) and then specifically describe sales of products to consumers as “fulfilled by Amazon” and carry out all of the services listed at Art 4(13) (“fulfilment service provider”). Effectively, “authorised representatives” and “fulfilment service providers” are liable in the same way as producer and importer were in terms of the previous Product Liability Directive and our current Consumer Protection Act.

In addition, Articles 8(3) and 8(4) provide that where none of these economic operators (producer, importer, authorised representative or fulfilment service provider) can be identified in the EU, then distributors and other types of online platform can also become liable to the same extent as the producer where the injured person requests that the distributor or online platform identifies an economic operator but fails to provide these details within one month.

What do consumers expect?

Under section 3 of the CPA, a product is defective if its safety is not “as persons generally are entitled to expect.” Courts have refined this over the years in cases such as Wilkes v DePuy International Ltd [2016] EWHC 3096, Gee v DePuy International Limited [2018] EWHC. In Hastings-v-Finsbury Orthopaedics Ltd & Or [2022] UKSC 19 the UK Supreme Court upheld those decisions emphasising that the “entitled expectation” test, is an objective test which a court must evaluate based on all relevant circumstances at the time of supply, without the benefit of hindsight.

But the EU’s new PLD goes further. It considers things like how a product evolves after purchase, its installation, maintenance, recalls, cybersecurity, and even the needs of vulnerable groups like children. It also covers defects in products that fail to fulfil their intended purpose, such as medical devices or safety-critical products like glucose sensors or smoke alarms.

Proving defects and causation

One of the hardest parts for consumers is proving a product is defective and caused harm, especially with complex items like medical devices or pharmaceuticals. Consumers are already disadvantaged in not having access to the same information as producers. This information asymmetry will be exacerbated by the use of software and black box algorithms embedded in products making it even harder for consumers to prove fault and causation.

The CPA was intended to establish a no-fault system for compensating consumers for defective goods, implementing the UK’s obligations under the EU Product Liability Directive 85/374/EEC. However, the interpretation and application of Section 3 of the CPA which defines a ‘defect’, has proven challenging for claimants. This was demonstrated in the Supreme Court case of Hastings v Finsbury 2022 UKSC 19, and earlier English court rulings that had found against claimants (Wilkes v DePuy International Ltd [2017] All ER 589; Gee & Ors v DePuy International Ltd [2018] EWHC 1208).

Is the UK keeping up?

The UK’s product liability system, based on the CPA, has been in place for almost 40 years. As products and shopping habits evolve, it’s not kept up with developments.

Here’s how it compares to the EU’s new PLD:

Defining Defects: The UK’s “entitled expectation” test is narrower and places more evidential hurdles on consumers to prove a product is defective. Under the CPA a product is not deemed defective just because a similar safer product is supplied later. Court decisions to date have also taken the date of supply as the relevant date to determine defect. Producers can now retain control over their products after they are supplied such as through software updates. The new PLD’s definition of defectiveness is more consumer-centric; it broadens the scope of what constitutes a defect, explicitly considers vulnerable user groups, and factors such as safety required under EU or national law. It also addresses the challenges posed by digital and AI-driven products by extending the producer’s liability to after the product is supplied.

Online Marketplaces: The CPA does not adequately address the role of online marketplaces, which often act as intermediaries and try to avoid liability for unsafe goods sold by third-party sellers on their platforms. The new PLD expands the list of Liable parties to ensure the accountability of all economic operators in the supply chain including online platforms in certain cases where the producer cannot be identified. This is needed to address the challenges of pursuing claims against overseas sellers.

Burden of Proof: In the UK, consumers must prove both defectiveness and causation, which can be tough for complex products. The new PLD’s aims to alleviate the burden of proof for claimants by establishing presumptions of defectiveness in certain situations, such as failure to disclose relevant evidence, non-compliance with mandatory safety requirements, or obvious malfunction causing damage. It also presumes a causal link if the product is defective, and the damage is consistent with that defect.

Prescriptive Period under the CPA: there’s a 10-year prescriptive period for claims, which is not enough for injuries that may take years to manifest. The new PLD helps by extending the claim period to 25 years for latent injuries.

Development risk defence: the CPA includes a “development risk defence”(DRD) that producers can rely upon where defects could not have been discovered due to the state of scientific and technical knowledge at the time. Given producers can now retain control over products after they are supplied via software updates, the UK’s DRD defence is out of date. The new PLD allows member states the option to remove the DRD, placing greater emphasis on consumer protection and holding producers accountable for risks, even if they were unknown at the time of supply.

What’s next for the UK?

The UK’s product liability rules need a serious update to keep up with the digital age and globalised shopping. The EU’s new PLD is a big step forward, offering better consumer protections, broader definitions of products, and a fairer approach to liability. While the UK’s Product Regulation and Metrology Act 2025 is a move in the right direction, it’s still not as comprehensive as the EU’s new rules. The UK Law Commission is reviewing the current system, which is a great chance to modernise and align with the EU’s approach. As product liability lawyers, it’s crucial to push for changes that address the challenges of new technologies, complex supply chains, and evolving consumer needs. Only then can the UK ensure its product liability rules are fit for the 21st century.

Paola Sproul is a senior solicitor and Mark Gibson is a partner at Digby Brown LLP