2. Method

2.1 Chemical legislations in scope

2.1.1 Reach regulation ((EC) No 1907/2006)

The REACH regulation stands for Registration, Evaluation, Authorization and Restriction of Chemicals. The REACH regulation covers requirements for chemical products and articles. Annex XVII of the REACH regulation sets out restrictions for certain substances. There are also rules restricting certain uses of substances posing an unacceptable risk.

2.1.2 POPs regulation ((EU) No 2019/1021)

The Regulation on Persistent Organic Pollutants (POPs

Regulation (EU) 2019/1021 of the European Parliament and of the Council on persistent organic pollutants.

) prohibits the placing on the market and use of several substances that are persistent and that can harm the environment and humans at low concentrations. Examples of regulated substances are short-chain chlorinated paraffins (SCCP) in plastic products and PFOA in different materials.

2.1.3 RoHS directive (2011/65/EU)

RoHS stands for Restriction of the use of certain hazardous substances in electrical and electronic equipment. The RoHS directive is a product-specific directive for electrical and electronic equipment that restricts the use of certain metals, flame retardants and phthalates. Among other things, the directive requires products to be labelled. The CE mark indicates that the manufacturer certifies that the requirements of specific EU legislation are met, and the contact details indicates which companies are responsible for the product.

2.1.4 Toy Safety Directive (2009/48/EC)

The EU Toy Safety Directive contains several requirements for the chemical content of toys. Among other things, there are limit values for how much certain metals may leak out, restrictions on the content of CMR substances (substances that can cause cancer, genetic mutations or damages to the reproductive system) and perfume substances. As in the RoHS Directive, the Toy Safety Directive contains labelling requirements.

2.2 Other relevant legislations

In addition to chemical legislations, there are other EU-wide legislations that are relevant to e-commerce. These are general rules for e-commerce and rules for the control of trade.

2.2.1 E-Commerce Directive (2000/31/EC)

E-commerce in the EU is regulated, among others, by the so-called e-Commerce Directive

Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) EUR-Lex - 32000L0031 - EN - EUR-Lex (europa.eu)

, which came into force in July 2000. The e-Commerce Directive lays down certain obligations for information society service providers (e.g., intermediary marketplaces) established in the EEA (member states of the European Economic Area). Among other things, there are requirements for marketplaces to provide certain information, such as the name, place of establishment and e-mail address of the marketplace (Article 5). The directive has limited the liability of marketplaces. The basic idea is that marketplaces that only serve as an intermediary in sales should not have any proactive responsibility for products sold. However, they must remove offers for sale when illegal content is discovered, and thus they have a reactive responsibility (article 14).

The directive will be replaced in February 2024 by the Digital Services Act ((EU) 2022/2065). More responsibility will be placed on marketplaces, including requirements that it should be clear who the responsible economic operator is for each product (article 31). It will also be mandatory for marketplaces to give a single point of contact to enable communication with the market surveillance authorities, among others (article 11).

2.2.2 Market Surveillance Regulation (EU) 2019/1020

The Market Surveillance Regulation (EU) 2019/1020 gives harmonised rules on market surveillance

Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011.

. The regulation addresses problems with e-commerce and introduces new provisions on measures concerning e-commerce. At the time being, the regulation is under implementation in Norway.

Placing on the market (article 6)

Article 6 in the Market Surveillance Regulation ((EU) 2019/1020), states:

"Products offered for sale online or through other means of distance sales shall be deemed to be made available on the market if the offer is targeted at end users in the Union [….]” In the introduction to the market surveillance regulation, it is stated (in section 15): For the case-by-case analyses, relevant factors, such as the geographical areas to which dispatch is possible, the languages available, used for the offer or for ordering, or means of payment, need to be taken into consideration. In the case of online sales, the mere fact that the economic operators' or the intermediaries' website is accessible in the Member State in which the end user is established or domiciled is insufficient".

Responsible economic operator (article 4)

The requirement that, in certain cases, products may not be placed on the market without the existence of a responsible economic operator established in the Union (article 4) is new in the market surveillance regulation. However, this new requirement only applies to products covered by RoHS and the Toy Safety Directive. The requirement does not apply to other chemical legislations such as the REACH, CLP and POPs. If there are no other responsible economic operators (manufacturer, importer or authorised representative), a fulfilment service provider will be the responsible economic operator. This is a new role, and it is defined in Article 3(11):

any natural or legal person who, in the course of a commercial activity, offers at least two of the services of storage, packaging, addressing and dispatch, without having ownership rights in the articles concerned

Marketplaces can have several different roles. In cases where they only display products for the sellers, they are not covered by the new provision. If, on the other hand, they take greater responsibility for the products as defined above, they become the responsible economic operator. The European Commission has issued a Notice of Guidelines on Article 4 (EUROPEAN COMMISSION, 2021).

Powers of market surveillance authorities (article 14)

The market surveillance regulation also gives the authorities the possibility to restrict access to a web page if no other effective means are available to eliminate a serious risk from a product (article 14).

2.2.3 The General Product Safety Regulation (EU) 2023/988

The General Product Safety Regulation (GPSR)

Regulation (EU) 2023/988 of the European parliament and of the council of 10 May 2023 on general product safety [..]: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32023R0988

will from 13 December 2024 replace the current General Product Safety Directive and the Food Imitating Product Directive

https://commission.europa.eu/business-economy-euro/product-safety-and-requirements/product-safety/general-product-safety-regulation_en

. It addresses the new challenges posed by the growth of online sales and in particular via online marketplaces.

2.3 Relevant e-commerce actors and responsibility

In this chapter, we are looking at the different e-commerce actors in light of their legal liability for the products they are selling. The following is based on the explanations in the report "Enforcement of e-commerce articles 2022" by KEMI (Swedish Chemicals Agency, 2023) and can be found in more detail there.

For the market surveillance authorities, it is crucial for the assessment of legal liability for a product to determine who owns the product and who does the buyer enter a purchase agreement with. This can often be challenging to determine, since there are several different business models and often limited information on contact details and company information given on the websites. In the different legislations, there are different obligations based on the role of the companies, and therefore important for the enforcement authorities to get this information.

2.3.1 Classic supply chain (web shops)

In the classic linear supply chain, ownership of a product passes from one actor to another in a chain. If such a company buys and sells online, we call them web shops as opposed to marketplaces and dropshipping stores. Ownership of the products (purchase and delivery) is transferred at each stage.

2.3.2 Marketplace

The marketplace provides a platform and, for example, payment solutions (mediate), while the seller in the marketplace is the one who sells the product to the buyer (consumer). Generally, the marketplaces have no responsibility in terms of, for example, product safety for the products. Product safety lies with each individual seller, who also sets the prices.

2.3.3 Dropshipping store

The verb "to drop-ship" is not new in the retail world and is explained by most dictionaries as "provide (goods) by direct delivery from the manufacturer to the retailer or customer". Yet there seems to be a relatively new form of dropshipping operating in the e-commerce market, in the way of a dropshipping store. The term dropshipping store has no legal definition but usually refers to an e-commerce store selling products without having its own inventory. From here, the consumer orders a product, which the dropshipping store in turn orders in the consumer's name from the dropshipping supplier (this can be done automatically). The product is then sent directly from the dropshipping supplier to the consumer. Often the dropshipping stores focus on certain trendy products in few copies and the stores are quick to open and close. The same products are usually also available for sale at the marketplaces.

These stores are set up so that it looks like the dropshipping store sells their own products. The steps after are usually hidden from the consumer. The customer perceives that the products are the dropshipping store's "own” because information about the real seller is missing. The store controls promotions and is in charge of the customer service. Prices are determined by the dropshipping store, unlike the marketplace where the seller sets the price. Based on this, we consider that the dropshipping store is a responsible economic operator, and hence, responsible for product safety, and will be regarded as an importer or distributor, in line with other responsible economic operators within the EU/EEA.

2.3.4 Dropshipping suppliers

When a dropshipping store is establishing, it needs to be filled with products. Usually this is done through a dropshipping supplier. Here, the dropshipping store gets access to different suppliers against payment and can choose which products they want to offer in their store, without having to seek out suppliers and negotiate prices, supplier terms, shipping, etc. They can also quickly exchange the products available in the dropshipping store.

With the increase of dropshipping stores, many traditional marketplaces now also operate as a dropshipping supplier, like for example Oberlo, SaleHOO, AliExpress (Alidropship), Droshi, Printful, BigBuy, DHGate, and Yakkofo.

2.4 Selection of companies, products and substances

Selection of companies

The scope of the project was to inspect products sold from e-commerce companies. We chose to focus on the three types of business models; web shops, marketplaces and dropshipping stores, which were explained in section 2.3.

The geographical location of companies was of specific interest in this project. It was decided that the participating countries would inspect products sold from companies located in their own country, in other EU member states and from outside the EU.

Due to lack of information on the web sites, it was not always easy to know the business model of the e-commerce actor and where it was located before the product was purchased.

Selection of products

Each country decided which products to buy and analyse. The strategy for selecting products differed between the countries and between each national sub-project chosen to be a part of this joint project. Most of the products were chosen based on experience on where we often see deficiencies, such as short-chain chlorinated paraffins (SCCPs) and phthalates in soft plastic, and lead and cadmium in electronic devices. But also, some of the sub-projects included control of more recent restrictions, such as CMR-substances in textiles, tattoo-inks and PFOA and its precursors in textiles. In this project, the products were categorised in the following groups:

Toy
Electrical product
Electrical toy
Sports and leisure
Jewellery
Clothes, shoes and accessories
Chemicals
Interior articles
Childcare article

In appendix II, there is an overview with examples of products in each category.

Selection of substances

The products were sent to external laboratories and analysed for restricted substances. We checked compliance with the substances that are restricted in the REACH regulation, the RoHS directive, the Toys directive and the POPs regulation. The substances tested for are shown in table 1. In total, 412 products were analysed.

Legislation	Substances
REACH annex 17	Phthalates, PAHs, azocolorants, CMR in textiles (post 72), CMR in tattoo inks (post 75), lead, cadmium and nickel.
POPs	Short chain chlorinated paraffins (SCCPs), PFOA and its precursors
Toys directive	Nitrosamines and heavy metals
RoHS directive	Phthalates and heavy metals

Table 1. Substances analysed for in different legislations.

2.5 Communication between member states

The enforcement authorities use the database ICSMS

The Information and Communication System on Market Surveillance (ICSMS) is an IT platform to facilitate communication between market surveillance bodies in EU and EFTA countries: Information and Communication System on Market Surveillance (europa.eu)

to communicate with other member states and to the public information about non-compliant products. If a company located in a European country is not taking appropriate measures, the enforcement authority having found out about non-compliant products can use a function in the ICSMS-system (baton) to hand over the case to the responsible authority in the member state where the company is located. This function was used in four cases to pass the responsibility for enforcement to another member state due to lack of response from the company.

If the non-compliance is considered serious risk for human health and the environment, the product is also reported to Safety Gate

Safety Gate: the EU rapid alert system for dangerous non-food products: https://ec.europa.eu/safety-gate-alerts/screen/webReport

, which obliges the enforcement authorities throughout EEA to check if the product is available on their market and remove it. Products reported to the system are published to the public every week by the European Commission.

To communicate non-compliant products to the public, there are also different national solutions. In Finland and Norway, products with serious risk are published on https://vaarallisettuotteet.fi/etusivu and https://farligeprodukter.no/ respectively, which are webpages operated by several agencies to communicate to the public. All three countries also publish the tested products in their national market surveillance reports.