I had an item available for pre-order but it wasn’t set to release until after Dec. 13th, 2024. What do I do now?
This depends on the situation, but, in general, this item will need to follow the GPSR in order for you to send it to the EU. The GPSR had eighteen months built in for people to figure out and adapt to the GPSR before it went into effect. The European Commission was tasked to provide guidelines to understand the regulation and completely and utterly failed in its legal obligations. So, we don’t know for sure where the line is with these.
That said, if the item was completely finished and didn’t require reworking, a loose reading of the GPSR could make this outside the scope of the GPSR.
If you were still making the item, such as a book or video game, and it wasn’t finished by Dec. 13th, 2024, then your changes could be seen as modifying the item, which then makes it fall under the scope of the GPSR.
But, the courts could still determine that, because the item wasn’t fully manufactured before that date, it still would fall underneath the scope of the GPSR. Nobody knows right now.
We will talk about this more in another video/post, but if you are outside the EU, there’s a possibility that it’s exempt if the item itself remains unchanged from the state it was in when sold. Such as if you offered a physical version of a video game and are not changing the packaging or the game code. This is because distance sales are treated differently in the text of the GPSR compared to domestic sales – a “loophole,” one could say. If you are in the EU, then the distance sales “loophole” doesn’t exist, and you will most likely need to abide by the General Product Safety Regulation no matter when sales began because the item was not completely finished by Dec. 13th, 2024.
~~If you are still confused, here are a few extra details (not stated in the video):
- The main point of contention is if “made available” means the item was fully produced and offered for sale or if it means it has been offered and the consumer can purchase it as is. The GPSR says “any supply” in its definition of “making available,” so I am under the impression it needs to have been fully manufactured for it to be exempt from the GPSR.
- Distance sales loophole? For offers of sale from sellers outside the EU, the item doesn’t need to be physically within the EU. So, it only needs to be “made available.” This “loophole” means that items don’t need to be physically within the EU if they’re being sold by someone outside the jurisdiction of the European Commission. So, a claim could be made (certainly not by me) that a scheduled manufacturing of a product would be exempt if it is not changed on or after Dec. 13th, 2024. But, again, I think you’ll just have to assume it’s under the scope of the GPSR if it wasn’t completed by the time the General Product Safety Regulation went into effect.
Because things will be a confusing mess for the first many months you might still be able to send out pre-ordered items after Dec. 13th, 2024 and at least not face retribution from any Customs officials. This is risky and I cannot suggest anyone do this. You could include a letter in the Customs/documents pouch for each package stating that the items were sold before Dec. 13th, 2024, but you were not able to ship the items until after that date. You would then include the date of the order and any other necessary information. But, as I previously stated, the GPSR included a transitional period so you were supposed to ensure that such pre-ordered items would follow the regulation as you knew they’d be released after it came into effect.~~
As always, the GPSR is subject to interpretation by the courts, so nothing on this website can be taken as legal advice. Every situation is different, laws and regulations change, and the courts can strike down or have alternate readings of specific lines of laws and regulations. Even the European Commission itself refuses to accept legal responsibility for its own statements.
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