By Rosalind Fraser
The Law Commission has launched a long-awaited review of product liability law in England and Wales, almost four decades after the introduction of the Consumer Protection Act 1987 (‘CPA’). The review aims to determine whether the law remains “fit for purpose” in a digital age increasingly dominated by software, AI systems and online platforms. The Law Commission will examine whether the right balance is being struck between providing effective redress for consumers harmed by defective products, whilst also supporting innovation and growth for businesses operating in increasingly complex and sophisticated technological environments.
Since the CPA’s introduction, the product landscape has transformed dramatically, especially with the advance of digital technologies. Products now often combine hardware with data, and underlying software is regularly updated. The Law Commission is therefore reviewing whether the CPA offers sufficient protection, clarity and certainty for manufacturers and producers in the digital age.
Strict liability regime under strain
The CPA establishes a strict liability system under which manufacturers can be liable for harm caused by defective products. This means that claimants do not need to prove negligence or fault on the manufacturer’s part. It is sufficient for a claimant to show that the product was inherently defective, so long as there is a causal link between the defect and the harm. The Law Commission will examine whether this concept of strict liability is still appropriate in an era of rapid technological developments, including AI-driven products, or whether it stifles growth and innovation.
AI products
One of the core purposes of the CPA is to ensure that those in the chain of production with the greatest ability to rectify defects are held accountable. This means that a producer, supplier or even importer of a product (depending on the circumstances) can be held liable.
AI products and products involving AI systems often involve complex and multilayered supply chains. For example, these may include the initial collection of underlying data to develop the model, the training of the data, the refining and programming of the data for a specific application, and then the preparing of the AI model for commercial deployment to end-users. Each step may involve a separate entity along a sophisticated chain. This complexity can create uncertainty as to which entity should bear responsibility under a product liability claim if the AI system is found to be defective.
At present, there is no definitive answer to this uncertainty. According to The Law Commission’s 2025 ‘AI and the Law: A Discussion Paper’, as it stands, underlying AI software is unlikely to attract liability. However, the paper also acknowledges that the roles and responsibilities of the various entities involved in the final product involving an AI system is “unclear”, making it similarly unclear which party should be held liable. It is hoped The Law Commission’s review will provide clarity, especially if AI is to be fully integrated into businesses and society to support innovation, growth and more efficient decision-making.
Reform to the long stop date
The Law Commission may also address the ‘long stop’ date currently in place under the CPA. Ordinarily, depending on the type of harm the defective product causes (for example personal injury, damage to property etc.), specified time limits are in place. There is, however, a ten-year ‘long stop’ date under s. 11A(3) Limitation Act 1980, which runs from the date a product was first supplied, after which no claim can be brought even where harm emerges later.
This long stop date was originally designed to balance the fact that some harms can develop at a later stage, whilst also protecting manufacturers from facing stale claims. In circumstances where products can be continually updated or upgraded throughout their lifecycle – for example, through software updates – The Law Commission is likely to consider whether the long stop should be recalibrated, potentially by tying the period to the specific defective version of a model or system or, to restart the clock in relation to substantial modifications to a model.
Final report
The review is ongoing and The Law Commission is encouraging stakeholders to provide their views and recommendations on any reforms to current legislation. There is hope that the law, which should not be contrived stifle growth, properly allows for innovation not least in an increasingly AI-focused world.
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