Will Great Britain Follow The EU With Reform Of Product Liability Law?

As reported in our February 2026 blog post, in 2025 the Law Commission, an independent statutory body established to keep the law of England and Wales under review and recommend reform, launched a review of the law on liability for defective products (publishing its terms of reference in December 2025). On 8 October 2026, the Law Commission published its consultation on product liability law which sets out its provisional proposals and invites responses to 62 questions.

Background

It has been over 40 years since the adoption of the EU Product Liability Directive 85/374/EEC, which was implemented into law in Great Britain by way of the Consumer Protection Act 1987 (CPA) and in Northern Ireland under the Consumer Protection (Northern Ireland) Order 1987. The EU legal framework was reformed in 2024 and EU Member States, and Northern Ireland, have until 9 December 2026 to implement the new Product Liability Directive (EU) 2024/2853 into national law. However, post-Brexit, the new EU Directive does not apply in Great Britain, and it is unclear whether the UK Government plans to overhaul the CPA. Although not binding on the Government, the Law Commission’s provisional proposals, which are similar in a number of key respects to the new Product Liability Directive (EU) 2024/2853, provide an indication of what may be on the horizon.

Key provisional proposals

The key provisional proposals for reform are described as:

• A broader, future-proof definition of “product” that includes software, AI systems (whether delivered on or embedded in a physical medium or supplied digitally), and the design components and features of social media and other online platforms.
• An expanded definition of “supply”, under which products are treated as supplied irrespective of how they are delivered, including by download or other digital means.
• ‘An expanded list of potentially liable persons, including product developers, fulfilment service providers, and UK authorised representatives, plus a “Core Participant” test aimed at online marketplaces, applying where no UK-based producer or importer can be identified. As well as clarification of liability where products have been substantially modified after supply.
• A clearer and more structured framework for determining what constitutes “defect”.
• A mechanism for cases of exceptional evidential difficulty, under which defendants must either accept the alleged defect (with damages starting at 50%, adjustable) or take on the burden of rebutting a presumption of defect.
• A new framework for the compensation of medically recognised or recognisable psychiatric illness.
• Compensation for loss of or damage to any property (including land), excluding property used exclusively for professional purposes with mixed-use property being compensated with a reduction to reflect professional use.
• Compensation for destruction and corruption of data, not including data leaks or data protection breaches.
• The retention of the existing defences, including the development risk defence, subject to updates to ensure they continue to work effectively in cases concerning digital products.
• The reset of the long-stop period following a substantial modification to a product and the extension of the long-stop to 25 years in cases of latent personal injury that could not have been brought within the initial 10 years.

What do the provisional proposals suggest in terms of the potential direction of a new regime?

The Law Commission has said that its aim in conducting this review is to consider the operation of the existing product liability regime, particularly in relation to digital products and emerging technologies such as AI, to determine what law reform might be required to ensure it is fit for purpose.

Bringing the product liability regime into the digital age has been a key focus for the Law Commission, but it is notable that certain proposals appear to go further than simply modernising the regime. The Law Commission has noted its intention to strike “an appropriate balance” between the interests of consumers and businesses. However, it is clear that the Law Commission considers the barriers faced by claimants under the current regime to be too great, so they propose new elements which, if adopted, would make it easier for claimants to succeed.

The proposals in terms of redefining “product”, expanding the scope of “supply” and the persons who may potentially be liable, together with compensation for destruction or damage to data and extension to the long-stop in cases of latent injury are broadly consistent with the changes introduced at EU level under Directive (EU) 2024/2853.

However, one important difference to the approach under the new EU framework is the proposal to provide a clearer and more structured framework for determining what constitutes “defect”. This includes a suggestion that the CPA should contain a non-exhaustive list of “principles” for assessing whether a product has met the entitled level of safety. If this proposal were to be adopted, the safety of a product would not be such as persons are entitled to expect where any one of these principles is satisfied:

(1) the product, when used in a manner that could be reasonably expected, caused damage beyond that which was ordinarily and inherently associated with such use;

(2) the product carried a risk of damage, and insufficient information was provided to enable persons to make a decision as to whether to accept that risk;

(3) the product carried a risk of damage that could be avoided and adequate instructions or warnings as to how that risk might be avoided were not provided;

(4) any warning or information provided in respect of a risk of damage posed by the product did not accurately and clearly convey the nature and seriousness of that risk, and/or downplayed or obscured it;

(5) the risk of damage posed by the product at the time of supply could reasonably (taking into account the cost and feasibility of doing so) have been eliminated or materially reduced, without compromising the product’s benefits and, it was not;

(6) the risk of damage posed by the product was not proportionate to, and justified by, the benefits which the product provided, unless that risk of damage was so well known by the public at large as to be considered socially acceptable; or

(7) the product, at the time of supply, posed a materially greater risk of damage than other products then available which would have provided comparable or greater benefits.

The Law Commission has said that these principles would not replace the overarching question posed by the current statutory test, i.e., whether a product’s safety is not such as persons generally are entitled to expect in all the circumstances, but rather they would “articulate and give more concrete expression to the test”. However, if only one of these principles needs to be met, this will make it easier for claimants to prove defect than under the current test. The Law Commission proposes that the principles should operate as “alternative bases” for establishing the entitled level of safety (and therefore defect). The principles are meant to operate alongside the current test for establishing defectiveness which requires consideration of all the relevant circumstances. It is difficult to see how this would operate in practice without undermining the existing test. Further, in the case of highly regulated products, such as medicines and medical devices, where supply takes place only following detailed review of data and confirmation of a positive benefit-risk assessment by independent regulatory bodies, it is unclear how these principles will alter the determination of defect in the majority of cases.

Next steps

The public consultation period runs from 8 October 2026 until Thursday 14 January 2027.

During this period, the Law Commission has said it will host a number of consultation events aimed at the public and a broad range of stakeholders, and invite written responses to the consultation paper.

Those who wish to provide a response can do so via the online consultation form or by email to: productliability@lawcommission.gov.uk

Following closure of the consultation period, the Law Commission has said that it will consider consultees’ responses to the provisional proposals and will later publish a final report setting out the conclusions that it reaches and recommendations for reform of the law. The final report is currently expected in late 2027.

The full consultation paper is available here and a summary document is available here.