Partner Valerie Kenyon recently attended a global conference focusing on product safety and compliance: ICPHSO 2021. There was fascinating coverage of accessibility issues from the FCC and a leading tech corporate. Through lively panel debate, product accessibility was looked at from various angles, including the view of regulators (via the US FCC perspective) and product safety professionals. The panel looked at how accessibility can be positioned across major corporations in terms of compliance suggestions and general buy-in.

Below, Valerie and her team reflect on how accessibility issues are currently shaping the legislative agenda: and impacting on their daily product counselling work.

Putting accessibility front and centre: what can companies do?

First, when creating a product or developing a service, it’s critical that the right people are involved, including those with disabilities, so that the starting point is accessible design across the product lifecycle. Put simply: product companies can do more by continuing to hire from as diverse a talent pool as possible.

Second, product companies can collaborate more and seek out (or even come to expect) the input of government to drive the accessibility agenda. “Soft government” has not worked in relation to accessibility to date: the speed of progress has been too slow.

Third, it’s important to involve the right stakeholders. There are many opportunities for companies to reach out to stakeholder groups for advice and input – for example, the European Disability Forum (an umbrella organisation of persons with disabilities that defends the interests of over 100 million persons with disabilities in Europe).

Accessibility in the EU: how has it developed [to] apply to products?

All EU countries have ratified the relevant UN Convention on the Rights of Persons with Disabilities, which clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptation has to be made for persons with disabilities to effectively exercise their rights and where protection of rights must be reinforced.

There have been aligned efforts in the EU to move accessibility for products towards a common approach which would benefit industries working globally. There are technical standards in the EU for ICT relating to accessibility which, although currently only technically applicable to public sector website and mobile applications, demonstrate best practice for private entities.

EU legislation has been patchy, covering specific areas as electronic communications , and audio media services , or limited to public sector products, which created a compelling case for further EU-level legislation to cover all aspects of accessibility across EU member states: the EU Accessibility Act is set to fill the gap.

The European Accessibility Act

The European Accessibility Act is key to the advancement of accessibility rights for disabled persons in the EU. It is a directive that aims to improve the functioning of the internal market for accessible products and services by removing barriers created by divergent rules in Member States. The European Accessibility Act covers products and services that have been identified as being most important for persons with disabilities, while being most likely to have diverging accessibility requirements across EU countries. This includes computers and operating systems, ATMs, banking services, e-books, e-commerce, and smart phones (it is a much wider list than this). Member States have until 2022 to implement the Directive, making its terms part of their respective national legislation.

The EAA focuses on digital products and services with a view to improving accessibility of technologies and technology products for persons with disabilities or functional limitations. It sets out a number of examples for both products and services, such as making sure information is available through more than one sensory channel, or providing assistive devices alongside a product that might, for example, providing text on a screen rather than aurally.

The European Accessibility Act means that EU member states are able to introduce accessibility legislation based on the Directive and to go beyond the European act, as is recommended by the European Commission, to broaden accessibility requirements. It is market access legislation so companies cannot sell products and services in the EU single market if products do not comply with the accessibility requirements in the European Accessibility Act.

The accessibility requirements apply unless the requirements would change the very nature of the product/service or if the requirements would impose a disproportionate financial or administrative burden. Where this is the case, entities would be required to comply with the accessibility requirements to the extent possible and then justify where they cannot due to such a disproportionate burden in an accessibility statement, that details their compliance with the accessibility requirements applicable to them under national law. The “disproportionate burden exemption” would largely apply to micro-organizations with less than 20 employees.

• Obligations across the supply chain – the EAA outlines specific obligations for manufacturers, importers and service providers.
• The enforcement mechanism proposed by the EU Accessibility Act is quite strong. It requires member states to ensure that adequate and effective means of enforcement exist, with the possibility to issue penalties and also to withdraw products from the market. Furthermore, disability organisations can take the economic operator to court for infringements of the Act.
• The EAA provides for a presumption for conformity, where products are in conformity with relevant harmonized standards as published in the Official Journal of the \ European Union. Products in conformance with the EAA should be CE marked and a Declaration of Conformity should be prepared.
• A Transitionary period is underway and EU member states are currently adopting and writing national laws, with a deadline of 28 June 2022. Later this year we will know more about the development of technical harmonised standards that flow from the European Accessibility Act.
• Alongside the required enforcement authority, consumer organisations will likely be playing a pivotal role in policing requirements in future.

Where next?

Our Global Products Law team has been focusing on supporting products companies with how to adapt their products and processes to take account of current and incoming accessibility legislation. There is a great deal to monitor that’s happening around the world, and the USA, for example, has differing state laws, but compliance with European standards should cover most bases for product companies operating globally.

Product companies need to be thinking about:

• Staying on top of country-specific requirements in this rapidly developing area of law.
• The provision of information, instructions and warnings on their products or services.
• Providing alternative sensory channels for use of their products or services.
• Ensuring electronic information is perceivable, operable, understandable and robust.
• Providing adequate support services, assistive technologies or alternative means of access to information.

Watch this space for more from our Global Products Law team.

Authored by Valerie Kenyon, Lucy Ward, and Emmie Le Marchand.