New EU rules on toy safety move a step closer

The Council of the EU has adopted its position (negotiating mandate) on the toy safety regulation that updates the rules to protect children from risks related to the use of toys. While the current legislation makes EU toy safety rules among the strictest in the world, the proposed legislation aims to increase protection from harmful chemicals (e.g. endocrine disruptors) and reinforce the enforcement rules with a new digital product passport.

The Council position supports the general objectives of the proposal but introduces several improvements to clarify the obligations of economic operators and online marketplaces; it sets out the contents of the digital product passport and warnings and increases the number of substances whose presence in toys is prohibited.

The negotiating mandate sets out the Council’s position on a proposal tabled by the Commission in July 2023. The Commission proposal for a toy safety regulation aims to update the existing directive with measures to increase protection from harmful chemical products, expanding the ban on carcinogenic, mutagenic and products toxic for reproduction (CMRs) to other dangerous chemical products such as endocrine disruptors and chemicals that affect the respiratory system or other organs. 

The proposed legislation aims to reduce the number of non-compliant and unsafe toys on the EU market by strengthening the enforcement of the legal requirements, in particular for imported toys. The Commission proposal introduces a digital product passport (DPP) that will include information on the safety of the toy, so that border control authorities can scan all digital passports using a new IT system. The Commission will be able to update the regulation and order the removal of certain toys from the market if any new risks not provided for in the current text arise in future.  

In the Council’s negotiating mandate, the obligations of economic operators have been aligned with the general product safety regulation (GPSR) and with the new realities of the increasing volume of online sales.  To that end, manufacturers will be required to mark the warnings in a language or languages that can be easily understood by consumers and other end-users, as determined by Member States. Manufacturers will also have to inform other economic operators in the distribution chain of any product conformity issues. Furthermore, toy importers will have to inform the producer and the market surveillance authorities if they suspect that a toy presents a risk.

The Council mandate also clarifies the obligations of ‘fulfilment service providers’ (the companies that take care of the logistical elements of selling products, such as warehousing, picking, packaging or shipping). They are considered economic operators, since fulfilment service providers play an important role in the placing of toys on the market, and in particular toys from third countries or those purchased online. Their obligations will be limited to their role in the supply chain, as the Council position considers that providers of online marketplaces play an important role when intermediating the sale or promotion of toys between traders and consumers.

Therefore, toys that do not conform with the toy safety regulation will be regarded as illegal content for the purposes of the digital services act (DSA). The negotiating mandate also sets out toy-specific obligations for providers of online marketplaces, in addition to those required by the existing legal framework (like the DSA and the GPSR). For instance, it requires that the interfaces of online marketplaces be designed and organised in a way that allows economic operators to display the CE marking, any warning necessary for the consumer prior to purchase and the weblink or data carrier (i.e. QR or bar code) which provides a link to the digital product passport.  The negotiating mandate further aligns the provisions related to the digital product passport with the ecodesign for sustainable products regulation (ESPR).

The Council position introduces a definition of ‘digital product passport’ to clarify what information must be contained in the digital product passports and the technical characteristics of the data carrier. The scope of the technical requirements relating to the digital product passport for toys will be determined by the implementing acts adopted by the Commission.

The Council position also clarifies the requirements as regards the minimum size, visibility and legibility of warning notices, so that they are visually accessible to the general population. The Council position aligns the toy safety regulation with the regulation on the classification, labelling and packaging (CLP) of chemical products. To that end, it limits the general ban on the presence of substances classified as carcinogenic, mutagenic or toxic for reproduction (CMR substances) in toys to those that have been subject to harmonised classification.

Furthermore, it introduces a ban on certain categories of skin sensitisers (chemical substances that provoke an allergic response following skin contact), a ban on toys that have a biocidal function, and a ban on the treatment of toys with biocidal products (except for toys that are intended to be placed permanently outdoors). Biocidal products are substances including preservatives, insecticides, disinfectants and pesticides used for the control of harmful organisms. Certain preservatives are allowed in some kind of toy materials. Finally, as regards allergenic fragrances, the negotiating mandate updates the specific rules governing their use in toys (including a prohibition on the intentional use of fragrances in toys), as well as the labelling of certain allergenic fragrances.

The general approach agreed today formalises the Council’s negotiating position. It provides the Council presidency with a mandate for negotiations with the European Parliament, which will start as soon as the newly installed Parliament adopts its position.  

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