Revision of EU Toy Safety Law: Interested Parties Invited to Participate in Public Consultation

On 2 March 2022, the European Commission kickstarted a public consultation with a view to revising the existing EU Toy Safety Directive. The Directive, which was adopted over a decade ago (in 2009), applies EUwide, setting out binding safety requirements that toys must meet before they can be marketed. However, an evaluation identified several shortcomings that could compromise the health and safety of children, in particular with regard to chemicals. Also, among other urgent matters, market surveillance was evaluated and found to be not up to the mark. Revision of the EU law is therefore on the table. The public consultation will end on 25 May 2022.

It is envisaged that the 2009 Toy Safety Directive will be replaced by an EU regulation. As regulations (as opposed to directives) have direct applicability in all Member States, diverging from the EU level law by Member States is much more difficult than in the case of directives, which first of all have to be transposed into national statute books. It is therefore hoped by EU legislators that the future law, once implemented, will be applied much more uniformly than has hitherto been the case, within the single market.

The publication of the notice launching the public consultation is titled “Protecting children from unsafe toys and strengthening the Single Market – revision of the Toy Safety Directive”. An initial roadmap under the same title had been published on 5 October last year. The accompanying inception impact assessment highlights a number of areas in which Hong Kong traders should expect broader and tougher measures.

It is pointed out that although the current Directive prohibits substances in toys that are carcinogenic, mutagenic or toxic for reproduction (CMRs), a generic approach to risk management of other extremely hazardous substances, such as endocrine disruptors or persistent and bioaccumulative substances, is missing.

Furthermore, the Directive only empowers the Commission to set limit values for any chemicals in toys for children under 36 months and in toys intended to be taken into the mouth. The same hazardous chemicals may, however, also present a risk to older children in other toys.

In addition, while the Directive includes a generic CMR prohibition, it provides for derogations which appear to allow too much of a presence of CMRs in toys. Current limits for (the carcinogenic) nitrosamines and their precursors, the nitrosatable substances, are too high. Finally, the Directive has no requirements to protect children from combination effects of chemicals arising from the simultaneous exposure to multiple chemicals.

In addition to these shortcomings, new risks in toys have recently emerged which are not adequately addressed by the Directive. This is the case for example for risks to personal data and privacy protection from internetconnected toys, such as dolls or robots that ‘communicate’ with children.

Regarding inspections and market surveillance, the Directive is felt to lack strength. Market surveillance efficiency is challenged by difficulties in obtaining the safety documentation of toys, or when trying to identify economic operators in online sales. Furthermore – a fact which Hong Kong’s toy sellers may appreciate – toy sellers have to identify chemical limits for toys also in other pieces of EU legislation (such as RoHS for electrical toys, or REACH for toys with chemicals), which can be a challenge.

Among other measures envisaged by the Commission, the future Regulation may contain provisions regarding the following:

· Extending the general risk assessment approach to other most hazardous substances such as endocrine disruptors or substances that are persistent and bioaccumulative;

· Allowing the setting of chemical limit values for any toys and not only for those intended for children under 36 months;

· Establishing positive lists for certain substances such as colorants or preservatives (meaning any not on such lists may be restricted or prohibited);

· Setting out requirements for the labelling of chemical composition of toys, including via digital labelling;

· The need to address new risks in internet-connected toys which have recently emerged, or toys including artificial intelligence.