New European toy directive

The toy industry can expect stricter requirements on the sale of toys in Europe.

If the European Commission and the Committee on the Internal Market and Consumer Protection of the European Parliament have their way, the EC Toy Safety Directive 2009/48/EC currently in effect will be replaced by a new European Toy Safety Regulation by the end of 2022. It is already foreseeable in this context that the regulations on the safety of toys will be tightened.

In line with the trend set in the last few years, European toy legislation will no longer be in the form of a European directive, but will have become a European regulation. Recent trendsetters for this type of legal development include the Regulation on Personal Protective Equipment 2016/425 ("PPE Regulation") and the EU Market Surveillance Regulation ("MSR"), which has been in force since 16 July 2021. This means that, unlike the situation today, the European harmonised requirements for placing toys on the market will apply directly, without the need for German legislators to transpose the regulations into national law – as was necessary via the Second Ordinance to the German Product Safety Act ("German Toy Safety Ordinance"). This change in regulatory technique is to be welcomed. In view of the complete harmonisation of the requirements for the marketability of toys, the member states no longer have any leeway for national regulations. The European Regulation largely does away with national regulations and is a modern regulatory instrument that is already being used to amend the EC Machinery Directive 2006/42/EC and the Directive on general product safety.

At present, the process to be initiated to amend the Toy Safety Directive is still at a very early stage. The Committee on the Internal Market and Consumer Protection of the European Parliament has issued an initiative report which is based on an evaluation by the Commission of the EC Toy Safety Directive 2009/48/EC and outlines possible amendments.

Even at this early stage, it already seems foreseeable that the requirements for the chemical safety and material composition of toys in particular will be revised and tightened compared to the current legal situation. For example, discussions are currently being conducted on further restriction of the existing exemptions from the ban on the use of CMR substances (carcinogenic, mutagenic or reprotoxic chemical substances). In addition, the EU Commission is to be given the authority to adapt the regulation to a greater extent by means of implementing decisions in order to be able to react more flexibly and quickly to the latest scientific findings with regard to hazardous substances in the future. 

Introducing suitable definitions to classify "grey zone products", as mentioned in the own-initiative report, would be particularly welcome. Grey zone products are not toys in the sense of European toy safety law, but can be confused with toys and are therefore often wrongly subjected to the strict regime of toy law by the European market surveillance authorities. Numerous administrative court proceedings in recent years have become necessary because the regulations of the Toy Safety Directive are inadequate.

What further changes to the legal situation the new European Toy Safety Regulation will bring about is still largely open to speculation. According to the aforementioned initiative report, plans include more networked and efficient procedures for the national market surveillance authorities using new technologies such as blockchain and artificial intelligence. The relevant economic actors, but above all their industry associations, will certainly be actively involved in the further development process and will help shape the new regulations to a certain extent. From the perspective of lawyers specialising in this sector, the hope remains that the European legislature will put an end to the European Commission's overly expansive "guideline policy" by including clear and precise provisions in the new regulation so that the numerous guideline papers for interpreting the Toy Safety Directive are no longer necessary.

Manufacturers, importers and sellers of toys should keep an eye on the further development of the new European Toy Safety Directive in order to prepare themselves in good time for the amendments that it will bring.