Brexit and product safety – what businesses need to know

10th December 2020

The government recently published a series of guides on specific product safety and metrology regulations for businesses placing manufactured goods on the Great Britain (GB) market from 1 January 2021. Regulatory & Compliance specialist Claire Burrows takes a look at the key points, what Brexit means for the UK’s product safety regime and the steps businesses can take to ensure compliance.

What’s changing?

The UK will no longer follow the EU product safety regime [1]. As a result:

• The status, liability and regulatory responsibilities of the various economic operators – manufacturers, producers, importers, distributors – in a supply chain involving the UK will be affected.
• Under consumer legislation, importers will be held liable as producers for personal injury or property damage arising from unsafe products that they supply.
• There will be a new conformity assessment system and a new UKCA product marking, replacing the current EU CE marking. The government’s guidance on using the UKCA marking can be viewed here.
• There will be a new framework for UK-based approved bodies to assess products against domestic rules.
• A UK-wide database will replace the Rapid Alert System currently used by EU member state authorities to share information about defective products.

Product safety and liability reforms are underway in the EU, in particular given the risks associated with new technologies. It is unclear to what extent the UK will mirror future EU regime changes and how access to the respective markets may be affected. Walker Morris will continue to monitor and report on developments. The government’s guidance for placing manufactured goods on the EU market can be found here.

Recent guidance

The government recently published a series of guides on specific product safety and metrology regulations for businesses placing manufactured goods on the GB market from 1 January 2021. They include regulations in relation to electrical/electronic equipment and products, machinery, gas appliances, pressure equipment, personal protective equipment, equipment and systems intended for use in potentially explosive atmospheres, and toys [2]. With some minor variations and notable exceptions (for example, the regulations on cosmetics and on weights and measures for packaged goods), the following key points arise:

• UK businesses which used to act as a ‘distributor’ before the end of the transition period legally become an ‘importer’ if they place products from a country in the European Economic Area (EEA) on the GB market, which means additional compliance requirements apply.
• From 1 January 2021, any mandatory third-party conformity assessment for the EU market will need to be carried out by an EU recognised conformity assessment body. UK conformity assessment bodies will no longer be able to carry out mandatory conformity assessment for products being placed on the EU market unless this is agreed in negotiations.
• From 1 January 2021, products that are conformity assessed by a UK approved body should be UCKA marked, not CE marked.
• The rules on physically affixing the new UKCA marking mirror those that apply to CE marking – however, until 31 December 2022, the UKCA marking may be affixed to a label or on a document accompanying the product.
• Until 31 December 2021, products conforming to EU rules, including the CE marking, may be placed on the GB market.
• After 1 January 2021, authorised representatives for the GB market cannot be based outside the UK.
• Authorised representatives and responsible persons based in GB will no longer be recognised by the EU from 1 January 2021. For the sale of products to Northern Ireland and the EEA, authorised representatives must be based there.
• The consequences of non-compliance include potentially unlimited fines and/or a criminal conviction.
• If you have already placed an individual fully manufactured product on the EEA or UK market (in Northern Ireland or GB) before 1 January 2021, you do not need to do anything new.

One of the recently published guides covers the amended General Product Safety Regulations 2005 (2005 Regulations). Where a product is subject to other specific regulations, as set out above, the 2005 Regulations will not apply. However, the 2005 Regulations will apply where they go further than the specific regulations in terms of the specific aspects of safety covered and the extent of the obligations on manufacturers and distributors. Note that, from 1 January 2021, ‘producers’ will include GB-based manufacturers and UK-based importers of products regulated under the 2005 Regulations.

Steps to ensure compliance

Businesses should:

• Familiarise themselves with the relevant guidance
• Consider their role in the supply chain and whether liability and regulatory responsibilities will change
• Review contractual arrangements and internal policies and procedures and update them accordingly
• Appoint authorised representatives if required
• Review product liability insurance cover
• Seek appropriate advice.

Should you have any queries, or require any assistance in relation to any of the points covered in this briefing, please do not hesitate to contact Claire or any member of the Regulatory & Compliance team.

[1] As a result of the Northern Ireland Protocol, different rules apply regarding the placing of manufactured goods on the Northern Ireland market (see the government’s separate guidance here).

[2] Medical products and food are covered by separate legislation not discussed here.