On 28 July 2023, the European Commission proposed a Regulation on the safety of toys building on and repealing the existing Toy Safety Directive (2009/48/EC). The proposed Regulation would increase protection from harmful chemicals and strengthen enforcement by requiring all toys to have a Digital Product Passport which would include information on compliance with the proposed Regulation. Importers would be required to submit Digital Product Passports for all toys at EU borders, including for those sold online.

The proposal, as with the current Directive, provides that the following would not be considered toys:

• electronic equipment, such as personal computers and game consoles, used to access interactive software and their associated peripherals, unless the electronic equipment or the associated peripherals are specifically designed for and targeted at children and have a play value on their own, such as specially designed personal computers, keyboards, joy sticks or steering wheels;

• interactive software, intended for leisure and entertainment, such as computer games, and their storage media.

In December 2023, amendments were tabled by the European Parliament Committee leading on this proposal, IMCO, by adding the following to the second bullet above “… unless the interactive software is either specifically designed for and targeted at children or can be reasonably expected to be played by children, such as computers and smart phones games.” In addition, it proposed amendments to Recital 14 of the Commission’s proposal so that it would read (italicised text is that proposed by IMCO) “…Having regard to the United Nations Convention on the Rights of the Child as elaborated in its General Comment No. 25 as regards the digital environment, connected toys, smart toys and online games are to comply with essential requirements for the protection of privacy, safety and security of children, by design and by default and are to incorporate safeguards towards cybersecurity and protection from fraud in accordance with Directive 2014/53/EU” (a reference to the Radio Equipment Directive).

Inclusion within the scope of the Regulation would mean that games would have to meet, amongst other things, the general safety requirement under the Regulation, namely, that toys must not present a risk to the safety or health of users or third parties, including the psychological and mental health, well-being and cognitive development of children, when they are used as intended or in a foreseeable way, bearing in mind the behaviour of children (article 5.2).

The IMCO Committee will need to finalise and vote on these and its other amendments to the Commission’s proposal, and those amendments will then have to be approved by the Parliament in plenary. The European Council position is also awaited. As such, the final scope of the Regulation remains uncertain.

The Opinion of the European Parliament’s ENVI Committee, published on 26 January 2024, does not table any similar amendments relating to video games.

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