On 26 March 2025, the Verkhovna Rada adopted in the first reading Draft Law No. 12426, which introduces significant amendments, in particular to the Law of Ukraine “On State Market Surveilance and Control of Non-Food Products”, which implement the European standards for the safety of non-food products and consumer protection provided for in Regulation (EU) No. 2019/1020 into national legislation on state market surveilance.
Among other things, the Draft Law proposes to clarify the meaning of many terms (e.g., “risk”, “business entity”, “withdrawal from circulation”, etc.), as well as to extend state market surveillance to order fulfilment services, fulfilment services and information society services.
The Draft Law provides for obligations for business entities to
- cooperate with market surveillance authorities in relation to actions aimed at eliminating or mitigating the risk posed by products provided on the market by these entities;
- provide, at the request of market surveillance authorities, information necessary to identify the owners of websites that contain information related to the subject of product characteristics verification;
- provide, at the request of the customs authorities, all documents and information available to them necessary for the control of products.
Several products subject to certain technical regulations may be placed on the market in Ukraine only if there is a business entity resident in Ukraine that is responsible for performing the following tasks in relation to such products (hereinafter – the “Resident”).
Such a Resident may be:
- a manufacturer who is a resident of Ukraine;
- an importer, in case the manufacturer is not a resident of Ukraine;
- an authorised representative who has a written power of attorney from the manufacturer appointing the authorised representative to perform the tasks specified below on behalf of the manufacturer;
- order fulfilment service provider – a resident of Ukraine in relation to the products for which it operates, if none of the business entities mentioned above is a resident of Ukraine.
In this case, the name, registered commercial name or registered trademark (sign for goods and services) and contact details, including the postal address of such a Resident, will be indicated on the products or their packaging, on the parcel or in the accompanying document.
The Resident will be obliged to perform the following tasks:
- where the technical regulations applicable to the relevant products require a declaration of conformity (declaration of performance) and technical documentation:
- to verify that the declaration of conformity (declaration of performance) and technical documentation have been drawn up,
- to keep the declaration of conformity (declaration of performance) for submission to the market surveillance authorities for a specified period,
- provide technical documentation to market surveillance authorities upon their request;
- to provide market surveillance authorities, upon their reasonable request, with all information and documentation necessary to demonstrate conformity of products in a language that is understandable to market surveillance officials;
- if there are grounds to believe that the products pose a risk, to notify the market surveillance authorities;
- to cooperate with the market surveillance authorities, in particular at their reasonable request, to ensure that the necessary corrective actions are taken immediately to eliminate non-compliance with the established requirements or, if such elimination is not possible, to mitigate the risks posed by such products, at the request of the market surveillance authorities or on their own initiative, if the business entity believes or has reason to believe that such products pose a risk.
Market surveillance authorities will be entitled to:
- conduct, in particular on their own initiative, product characterisation tests and monitor the state of compliance with the established requirements of products made available on the market in order to identify and eliminate non-compliance;
- select, including secretly, product samples, subject them to reverse engineering and ensure their examination (testing) in order to identify non-compliances and obtain relevant evidence;
- submit a request to the customs authorities to suspend the process of release of products for free circulation if there are sufficient grounds to believe that such products do not meet the requirements established for them or pose a serious risk;
- agree with other executive authorities or local self-government bodies or associations of business entities or of end users on joint activities aimed at promoting compliance with the established requirements, identifying non-compliance, raising awareness and providing recommendations regarding the established requirements for specific types of products;
- use any information obtained in the course of joint activities, their verification of product characteristics in order to identify non-compliance.
The Draft Law also stipulates that the selection of product samples, the examination (testing) of which is carried out using non-destructive testing, is carried out free of charge (except for samples purchased secretly and/or through online trading or other means of distance trading). The market surveillance authority shall ensure proper transportation and storage of such samples. After the examination (testing), such selected samples shall be returned to the owner. In case of damage or destruction of the selected samples, their cost shall be fully reimbursed to the owner, except in cases of non-compliance of product samples.
At the same time, if there are grounds to believe that the products are dangerous, pose a risk and/or do not meet the established requirements, the market placement of products, samples of which have been taken for examination (testing), is temporarily prohibited by a decision of the market surveillance authority for the period of such examination (testing). The said decision shall be valid until the market surveillance authority, based on the results of the examination (testing), decides to terminate the decision on a temporary ban on the market placement of such products or to take corrective actions.
If the products pose a serious risk that cannot be eliminated by bringing them into compliance, the market surveillance authority
- require the relevant business entity to remove content about such products from the online interface or provide a clear warning to end users when they access the online interface;
- if such a requirement is not met, issue an order to the information society service provider to restrict access to the online interface, including a requirement for the relevant third party to take such actions.
Market surveillance officials will be entitled to:
- under certain conditions, freely visit land plots and vehicles used by business entities for the purposes of trade, business, industrial or professional activities, as well as construction sites, to inspect product characteristics and check the status of implementation of decisions on corrective actions by business entities in order to identify non-compliance and obtain evidence;
- to use any information, documents, established facts, statements and any information received as evidence for the purposes of conducting product performance audits, regardless of the format and storage medium;
The Ministry of Economy of Ukraine will be responsible for ensuring the development and approval of the National Market Surveillance Strategy, which will be designed to promote a consistent, comprehensive and integrated approach to market surveillance and compliance in Ukraine.
The Draft Law also proposes to improve the procedures for controlling non-food products when they are imported into the customs territory of Ukraine, the mechanisms of interaction between customs authorities and market surveillance authorities, etc. Information will be automatically exchanged between computer systems. Products will not be held at customs for long if laboratory tests are required to confirm their safety.
This document is currently being prepared for a second reading in the Verkhovna Rada. We will closely monitor further developments in the status of this Draft Law and report on them in the future Legal News.
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