In this video, Katie Vickery, a Partner in Osborne Clarke's UK Regulatory Disputes team, and Katrina Anderson, a Senior Associate in Osborne Clarke's UK Commercial team, discuss the implications that the New Deal for Consumers will have for the marketing of "dual quality" products across EU Member States and the steps that businesses will need to take in order to become compliant with the directive before it comes into effect in May 2022.
The practice of marketing products in identical or similar packaging but with different compositions of characteristics in different EU Member States has been a topic of consumer interest for a number of years, largely due to the concern that some branded products might be of inferior quality in certain Member States. The practice has come to be known as the marketing of "dual quality" products.
Under the Omnibus Directive, the marketing of products in this way will be regarded as a misleading commercial practice unless it can be justified by legitimate and objective factors. The EU has signalled that they want to see enforcement of the directive, and Member States' national enforcement authorities will be given stronger powers to take action against this form of marketing, including the ability to impose GDPR-style fines based on annual turnover. This means that manufacturers will need to make a choice whether to align their specifications or composition across the EU or to establish whether they have a legitimate reason for the differences.
Whilst the Omnibus Directive is not a form of EU law that has been retained by the UK since it's departure from the EU, any UK-based business that sells any consumer products across the EU market could potentially be on the hook and will need to take steps in order to ensure compliance.