UK product safety update: two year extension given to businesses for GB specific product safety marking

The UK Government announced on 14 November 2022 that businesses would be given a further two years to apply the new UK Conformity Assessed (UKCA) product safety marking to their products. The UKCA mark is the UK equivalent of the European Union’s CE mark, which denotes compliance with mandatory applicable product regulations when applied to products.

The government has laid secondary legislation before parliament, namely the draft Product Safety and Metrology (Amendment and Transitional Provisions) Regulations 2022 (the draft Regulations), which, subject to parliamentary approval, will implement these measures. Businesses have been allowed to use the UKCA mark since 1 January 2021 to demonstrate compliance with product standards in the UK, though the EU CE mark has still been accepted throughout this period. The UKCA mark was originally due to be applied from 1 January 2022.

Business Secretary, Grant Shapps, advised that this time extension will allow businesses to continue to focus on growth and innovation during this difficult economic climate as well as ensuring that the UK’s future system for product safety marking is “fit for purpose, providing the highest standard for consumers without harming business”.

Highlights:

  • The UK Government will continue to recognise the EU’s CE marking in Great Britain (England, Wales and Scotland) for another two years, i.e. until 31 December 2024.
  • Businesses can continue to voluntarily apply the UKCA marking if required, giving them flexibility to choose which marking to apply.
  • From 31 December 2024, all products being placed on the market or being put into service in Great Britain will require a UK Conformed Assessment (UKCA) marking to conform with the technical requirements set out in product specific legislation.
  • Under the terms of the Northern Ireland (NI) Protocol, NI continues to recognise CE marking for goods placed on the NI market. Businesses are required to use the UKNI marking if they use a UK Conformity Assessment body to test their products. However, on 27 February 2023, the UK Government reached agreement with the EU in relation to the new ‘Windsor Framework’ which will replace the NI Protocol and provide a new legal and UK constitutional framework that aims to facilitate smooth flowing trade into NI. Updated guidance on the use of the UKNI mark is expected in due course, as noted on the UK Government’s website.

Many businesses have welcomed this pragmatic decision by the government to extend the deadline in response to the continued widespread pressures on product supply as a result of geopolitical impacts, including the ongoing war in the Ukraine and the COVID-19 pandemic.

The two year extension sits alongside other processes being introduced to reduce the cost of labelling and retesting products:

  • Businesses can affix the UKCA mark and include importer information for products from EEA countries on an accompanying document or label until 31 December 2027.
  • Conformity assessment activities for CE marking undertaken by 31 December 2024 will be allowed to be used by manufacturers as the basis for the UKCA marking until 31 December 2027.

Actions for businesses

Businesses selling products that fall within the product areas listed on the UK Government website will be required to use the UKCA marking and should familiarise themselves with these updated timelines and the steps they need to take to ensure that their products are compliant.

Businesses should be mindful that specific rules may be relevant in the application of the UKCA mark, such as medical devices, construction products, energy using products and hazardous substances. Businesses should consult the corresponding sector-specific guidance for full information.

Businesses operating in the medical devices and construction sectors should be aware that there have been sector specific extensions in relation to the application of the UKCA marking:

  • Medical devices: On 25 October 2022, the Medicines and Healthcare products Regulatory Agency (MHRA) announced that the deadline for UKCA marking of medical devices is to be extended by 12 months until July 2024 and that CE marked medical devices will continue to be accepted for registration with the MHRA until June 2023.
    Note: in light of the recent vote by the EU to extend the transition period for the EU Medical Device Regulations and the validity of certain device certificates, the MHRA is currently considering what the implications are for the acceptance of CE marked medical devices on the GB market. The MHRA advise that they will be publishing guidance on this as soon as possible.
  • Construction products: On 9 December 2022, the Department for Levelling Up, Housing and Communities announced the deadline for UKCA marking of construction products will be extended until 30 June 2025.

Achieving conformity through designated standards

One well recognised mechanism of establishing compliance with overarching product regulations is the reliance on designated standards. A designated standard is a standard, developed by consensus, which is recognised by government in part or in full by publishing its reference on the UK Government website in a formal notice of publication. They can be used by businesses to show their products, services or processes comply with essential requirements of legislation. By following designated standards, manufacturers can claim ‘presumption of conformity’ with the corresponding essential requirements that apply to their products. They do not replace the essential requirements; manufacturers continue to have responsibility for ensuring compliance with applicable GB laws.

In the EU, many manufacturers and other economic operators use relevant ‘harmonised standards’ to demonstrate conformity with relevant EU laws and regulations. Post Brexit, EU harmonised standards became designated standards in the UK, save for in Northern Ireland (NI) where EU harmonised standards remain the relevant standards for placing goods on the NI market where EU rules still apply. However, as noted above, changes may be made in light of the recently agreed Windsor Framework.

Comment

In addition to these welcome extensions, many businesses will be alert to the government’s review of the UK’s wider product safety framework, which aims to address the changing landscape of e-commerce whilst minimising the burden on businesses.

The minutes of the parliamentary discussion that took place on 7 December 2022 addressing draft Regulations notes that the UK government had said that its product safety review would be published in Spring 2022 but cited delays due to the pandemic, the ongoing cost of living crisis and some political instability. The minutes indicate that government ministers are working to bring the review forward as quickly as possible.

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