BLL explains GPSG

Device and Product Safety Act revised

On January 9, 2004, the law on the reorganization of the safety of technical work equipment and consumer products (Equipment and Product Safety Act - GPSG) was published in the Federal Law Gazette. It comes into force on May 1, 2004 and from this point in time replaces the Product Safety Act and the Equipment Safety Act, which will expire at the same time.

1. Aim and function of the GPSG

The GPSG summarizes the safety requirements of technical work equipment and consumer products, which were previously distributed in the Product Safety Act and in the Equipment Safety Act, which also include the products covered by the Food and Commodities Act (LMBG), in a single set of regulations and sets the EU Directive 2001/95 / EC of the European Parliament and the Council of December 3, 2001 on general product safety into German law in due time. The aim is to create a comprehensive law to ensure safety and health in connection with the marketing of technical products in order to deregulate and reduce bureaucracy.

The new GPSG takes over the function of the previous Product Safety Act, ie on the one hand the umbrella function for all consumer products within the meaning of the Product Safety Directive, and on the other hand the catching function for other products for which there is no special law. As a legal minimum standard, the GPSG is intended to close gaps between existing regulations and create a general - albeit subsidiary - legal basis for consumer protection. After a two-stage review, the GPSG only comes into effect if other legal provisions do not contain at least equivalent provisions a) with regard to the safety requirements and b) the other obligations of the person placing the product on the market. This ensures that the basic elements of effective consumer protection with regard to product safety apply to all products that are used by consumers.

2. Differentiation between food law and GPSG

According to Section 1 (3) GPSG, the Equipment and Product Safety Act does not apply if other legal provisions contain at least equivalent provisions. The comparison to be made with the special legal provisions is on the one hand in sentence 1 on the guarantee of safety and health and on the other hand in sentence 2 on the guarantee of the content of §§ 5, 6, 8, 9 and 10 GPSG (market surveillance as well as for Publication of information on dangerous consumer products). This corresponds to the aim of the GPSG to ensure that the basic elements of effective consumer protection with regard to product safety and market surveillance apply as the minimum standard for all products that are used by consumers.

a.) Scope of application for food

For foodstuffs that were only affected by the regulations on product recalls and public warnings (§§ 8-10, 15 Paragraph 2 No. 2, Paragraph 3 of the Product Safety Law) according to the previous Product Safety Act, the Equipment and Product Safety Act (GPSG) will apply The BLL will only gain relevance for a transitional period up to December 31, 2004. The safety requirements for the marketing of food are much more specific in the food law and regulated at a level that is at least equivalent to the GPSG. Accordingly, in the opinion of the BLL, food is fully covered by the exception in Section 1 (3) sentence 1 GPSG. A corresponding statement earlier in the official justification was unfortunately omitted in the course of the legislative process, as it referred to all products of the LMBG, which did not appear tenable in this form. However, this does not change the fact that the provisions of the GPSG, which serve to guarantee safety and health, do not apply to food because of the special requirements in food law.

Also with regard to the second equivalence test according to § 1 Paragraph 3 Clause 2 GPSG to the other obligations of the distributors according to §§ 5, 6, 8, 9 and 10 GPSG, from the point of view of the BLL with regard to food there is only for a transitional period up to December 31, 2004 limited applicability of the GPSG. This is due to the fact that the LMBG currently does not contain any regulations on product recalls and public warnings, so that in this regard - as previously on §§ 8-10, 15 Paragraph 2 No. 2, Paragraph 3 of the Product Safety Act - on the corresponding regulations of § 8 Paragraphs 4 and 5 GPSG will have to be used.

However, the safety function of the GPSG will only continue to exist for foodstuffs up to the date mentioned, since from January 1, 2005 Article 19 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council of January 28, 2002 establishing it the general principles and requirements of food law, the establishment of the European Food Safety Authority and the establishment of food safety procedures (so-called EU basic regulation), which finally regulates the areas of recalls and reporting obligations for food at European level in food law. In addition, the new Food and Feed Code (LFGB), which is currently being discussed, will in all probability contain supplementary (implementation) regulations on product recalls and public warnings for products falling within the scope of the LFGB.

Accordingly, it can be assumed that foods that will in future be subject to Article 19 of Regulation (EC) No. 178/2002 or (currently) Article 39 Paragraph 2 No. 2; Paragraph 5 No. 2 LFGB, will no longer be affected by the provisions of the new Equipment and Product Safety Act from January 1, 2005, since from this point in time also equivalent provisions to Sections 5, 6, 8, 9 and 10 GPSG are contained in the relevant special legal provisions of food law.

b.) Scope of application for other products of the LMBG / LFGB

For the other products in the scope of the LMBG or the future LFGB (consumer goods, cosmetic products), it will still have to be checked in detail whether and to what extent the provisions of the GPSG will apply to them as a fall-back rule. This in turn applies on the one hand with regard to the safety requirements and on the other hand with regard to the other obligations of the person placing the product on the market. With regard to consumer goods, at least the material requirements should be adequately covered by the LMBG / LFGB. The extent to which additional safety requirements (e.g. from occupational safety) are to be taken into account in accordance with the GPSG regulations must be checked on a case-by-case basis. Since the other products are in any case not covered by the special regulations on recall / withdrawal / notification obligations of Art. 19 of Regulation (EC) No. 178/2002, to answer the question whether the regulations of the GPSG apply in this respect, the content and the exact scope of the corresponding LFGB regulations are awaited. Only then can it be assessed whether and to what extent the GPSG will be superseded by more specific provisions of food law in these cases.

Source: Bonn [bll]