UKCA Marking Further Delay (Britain)

On 14th November the BEIS department of the UK Government laid before Parliament a further draft Statutory Instrument “Product Safety and Metrology (Amendment and Transitional Provisions) Regulations 2022. The earlier draft instrument (I reported on by Email Alert a while back) is not proceeded.

The main purposes of this new instrument are to:

(1) extend acceptance of certain products meeting EU requirements and markings on the market in Britain for a further 2 years, until 31 December 2024, and

(2) as previously announced on 20 June 2022 (see my earlier blog post), but with updated timelines –

* provide that where manufacturers, or other relevant persons, have acted under EU conformity assessment procedures by 31 December 2024, that action will be treated as having been taken under the UK conformity assessment procedures until the expiry of the certificate, or until 31 December 2027, whichever is sooner

* extend existing labelling provisions for UKCA marking, importer information and responsible persons’ information until 31 December 2027.

There are different rules for medical devices, construction products, cableways, transportable pressure equipment, unmanned aircraft systems, rail products, cosmetics, and marine equipment.

There are different rules for Northern Ireland.

I will update Cardinal Environment Limited EHS Registers and Checklists. This matter will also be in the next Email Alert.

UKCA marking (Britain)

The UK Conformity Assessed (UKCA) mark is the new mandatory mark on a large number of manufactured goods to indicate that they conform to legislation enacted in Westminster for Britain (GB).

Businesses have until 1 January 2023 to start using UKCA marking which replaces EU marking.

On 20th June 2022, the then UK government announced that conformity assessment activities undertaken by EU bodies before the end of 2022 would be considered as the basis for UKCA marking in 2023.

That UK government announced that legislation on this would be brought forward before the end of 2022 to enable manufacturers to apply the UKCA mark on these products without the need for re-testing.

The purpose of this new legislation (if enacted) would be to allow CE marked products that are manufactured and imported into the UK by the end of 2022 to be sold, without the need to meet UKCA requirements. This would remove the current need for retesting and recertification for products that are imported whilst the UK recognised CE requirements. 

The 20th June 2022 announcement also states the UK would continue to accept spares onto the GB market which comply with the same requirements that were in place at the time the original products or systems they were being used to repair, replace or maintain were placed on the market.

Legislation would also be brought forward to extend current labelling easements to allow important information and other UKCA markings to be added to products using a sticky label or an accompanying document.

In addition, the 20th June 2022 announcement states that manufacturers of construction products under AVCP system 3 – such as radiators, sealants and tile adhesives – whose products are tested by an EU notified body before 1 January 2023 would be able to obtain a UKCA mark without having to retest through a UK-approved body.

The 20th June 2022 announcement is here.

The business sectors that these measures apply to include:

• aerosols

• electrical and electronics

• equipment for explosive atmospheres

• pyrotechnics

• gas appliances

• lifts

• machinery

• outdoor equipment

• personal protective equipment

• toys

• pressure equipment

• civil explosives

• recreational craft

There are different rules for:

• medical devices

• construction products

• cableways

• transportable pressure equipment

• unmanned aircraft systems

• rail products

• marine equipment

Office for Product Safety and Standards (UK from 1st Jan)

The Office for Product Safety and Standards (OPSS) has published guidance for businesses in Great Britain (GB) and separately in Northern Ireland (NI).

The guidance is issued separately (for GB and NI) – here – for the following –

(1) General Product Safety

(2) ATEX

(3) Cosmetics

(4) Electrics and electronics

(5) Gas appliances

(6) Lifts

(7) Machinery

(8) Metrology (weights and measures)

(9) Outdoor equipment

(10) Pressure equipment

(11) Recreational craft

(13) Toys

Guidance (Brexit) in these areas was issued in earlier years, but these documents are a fresh issue, and will be added imminently to the Brexit Guidance List in subscribers’ EHS Legislation Registers & Checklists online.

The Implementation or Transition Period officially ends at 11pm on 31 December 2020; therefore references to 1 January 2021 should be read as meaning 11pm on 31st December 2020.

Great Britain

The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, and other Brexit Law, that are being consolidated into domestic law – the Brexit Consolidated Law List in subscribers’ EHS Legislation Registers & Checklists) are also amended by the Product Safety and Metrology etc. (Amendment etc.) (UK(NI) Indication) (EU Exit) Regulations 2020 – which are not yet approved by Parliament.

This (as yet not approved amendment) provides for a 24 month transition period for importer labelling (for goods from the EEA), and the UKCA marking. It also amends the definition of “authorised representative” as well as introduces an end (in 12 months from the end of the Transition Period) to the recognition of goods meeting EU requirements, as well as introduces provisions for qualifying Northern Ireland goods.

Northern Ireland

Only a few of these guides are yet published.

EU Law in UK 2021 (UK Brexit)

Exit day is 31st January (end of this month)

Implementation period completion day is 31st December (this is the end of the transition period)

The Chancellor speaking to the Financial Times, confirms there will be no dynamic alignment with EU Law after 2020.

I am not yet clear which laws will diverge, but please note the Brexit laws allow divergence, for example the Brexit Agriculture Bill provides for England, Wales and Northern Ireland to create their own marketing standards (Scotland will need to enact its own Brexit Agriculture Bill).

The EU Exit regulations (statutory instruments) we (Cardinal Environment) are consolidating into domestic law only deal with the pre-Brexit period to end Dec 2020.

It is the FT front page today (Saturday 18th January) and the lead on BBC online.

EU Law per se will not apply anyway. Note, there may be some long tail implementation left over from pre-Brexit that will be implemented.

We (Cardinal Environment) are already consolidating the EU Exit regulations into domestic law, and creating the Retained EU Law (EU Regulations, not Directives, that are adopted). Progress in this project can be seen by clicking the Brexit Consolidated Law List on the top right hand side of EHS Legislation Registers & Checklists homepages (both ENV and OHS).

We are working to the deadline of 31st December 2020 for completion of this project.

In addition, EHS Legislation Registers & Checklists will see the home page choice of ENV or OHS have additional Post-Brexit choices, and the existing links relabelled Pre-Brexit.

The Post-Brexit links will direct to shadow Registers & Checklists that will run from the end of Q1 to hit the end Dec 2020 deadline, for switch over to Post-Brexit.

Post-Brexit shadow Registers & Checklists running in 2020 will have Brexit Consolidated Law loaded (accessibility will stay from the main Brexit Consolidated Law list), and will display a changed Register layout.

Post-Brexit EHS Legislation Registers layout – EU Law will be moved from the top to below Guidance. We will still supply up to date EU Law to UK customers, but this is where it will be found. Retained EU Law will be displayed at the top of the Register.

UKCA Mark (UK Brexit)

Exit day is 31st October (this is the date in a Statutory Instrument)

Please remember the UK is bringing in a new UKCA Mark, applicable after Exit day.

The Feb issued instructions on UKCA Mark are here.

This applies to certified goods sold in the UK.

Please follow the links carefully, as some goods will require the UKCA Mark immediately after Exit day.

Other goods will be able to continue with the CE Mark for a limited period.

UK Product Safety and Metrology (UK Brexit)

Exit day is 31st October (this date is in a Statutory Instrument)

Today, the UK Office for Product Safety & Standards re-issued with updates the March Instructions on Product Safety and Metrology.

This September document – UK Product Safety and Metrology Guidance in a ‘no deal’ Brexit – is here.

The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, as amended by the Product Safety, Metrology and Mutual Recognition Agreement (Amendment) (EU Exit) Regulations 2019, amend local law and retained EU Law, from Exit day.

These Brexit laws are in the subscribers’ Brexit Law List and consolidation is well underway – in the Brexit Consolidated Law List (next upload – start of October).

(1) The Brexit Law alters those legal provisions in UK regulations and retained EU law that would not work effectively when the UK leaves the EU without changes. The Brexit Law objective is to create a functioning regulated UK market.

(2) The safety and other technical requirements are not specifically changed, but processes are changed.

(3) Products lawfully placed on the EU market before the UK leaves the EU can continue to circulate in the UK (for a temporary period, consultation will occur before this period ends, and a new Brexit Law is required for the temporary period to end).

(4) Lawfully CE marked products will continue to be accepted by the UK, intended to be for a time limited period (see above).

(5) Products being placed on the UK market for the first time after the UK leaves the EU must meet the same technical requirements as before – but labelling or notification requirements will change.

(6) A new UK Conformity Assessed marking (“UKCA”) may be used for products that will be placed on the UK market where conformity assessment has been carried out by a UK approved body (formerly a notified body). This is because after Exit day, the EU no longer recognises UK based Notified Bodies and so they will become UK Approved Bodies. The UKCA mark is not yet set up.

(7) Products intended to be exported to the EU that require an independent third-party conformity assessment – this assessment must be carried out by an EU based Notified Body and the products must be ‘CE’ marked (where required) once they have been successfully assessed. After Exit day, this cannot be carried out by a UK Approved Body.

(8) Where currently allowed, UK manufacturers can continue to self-declare that products meet EU rules and place these products on either the UK or EU markets. [please recheck this with the EU import country]

(9) The UK will continue to recognise EU Notified Body conformity assessments, for a time limited period, so manufacturers and importers will still be able to place goods on the UK market lawfully bearing the CE marking where they have been assessed by an EU Notified Body (where required).

(10) The UK will publish a list of references to designated standards that will have the same function as harmonised standards and give presumption of conformity to legal requirements. On Exit day, these designated standards will be the same as the harmonised standards.

(11) When the UK leaves the EU, the role and responsibilities of the manufacturer will be unchanged. However, some UK businesses which bring products into the UK from an EEA State and who were previously “distributors” from Exit day become “importers” acquiring new legal duties, including complying with an enhanced set of requirements to check product compliance as well as to keep documentation and ensure their address appears on the product.

(12) There is an 18-month transitional period for these “new” importers during which they can put their details on documentation accompanying the product, rather than on the product itself. The same will apply to imports from Switzerland for certain products, for the same 18- month period.

(13) Cosmetic products that have the information of the EU responsible person on the container and packaging will be allowed on the UK market for 2 years after the UK leaves the EU, after which the container and packaging will need to bear the name and address of the UK responsible person.

(14) The EU will not have a transitional period and so UK manufacturers exporting to the EU will need immediately after Exit day to have the address of the relevant EU responsible person on the goods they are exporting.

Please read the September document carefully, and also re-check with the EU import country.

Manufactured Goods (UK Brexit)

Exit day is 31st October (this is the date in a Statutory Instrument)

Yesterday (10th Sept) HMG re-published its instructions on Manufactured Goods.

Here

I did Blog post these instructions in March, note the UKCA mark. The UKCA mark is not available yet. CE marks will continue for a temporary period.

The Sept publication has an update reminder that Distributors will be Importers.

By now, everyone should be Brexit Ready.

The specific text re Importers – (note the EEA and Switzerland reference)

If you are currently a UK distributor, you need to confirm whether you or your supplier will become an ‘importer’ once the UK leaves the EU. This will usually be the case if you are the one bringing goods into the UK from the EU, EEA or Switzerland, and want to put them on the UK market after Brexit.

If you are becoming an ‘importer’ you will need to ensure you understand your legal obligations. You will need to make sure:

• goods are labelled with your company’s details, including your company’s name and a contact address (for 18 months after Brexit you can provide these details on the accompanying documentation rather than on the good itself)

• the correct conformity assessment procedures have been carried out and that any good you import carries the correct conformity markings

• the manufacturer has drawn up the correct technical documentation and complied with their labelling requirements

• you maintain a copy of the declaration of conformity for a period of 10 years

• you do not place a good you import on the market if you have reason to believe it does not conform with the relevant essential requirements

UKCA mark (UK Brexit)

I posted earlier that the Government issued instructions on the CE mark and the new UKCA mark. This post sets out more detail.

The UK issued a technical notice on Construction Products – here.

The UK then issued instructions re the new UKCA mark – here.

A couple of points :

(1) Manufacturers will not have to use the UK marking (UKCA mark) immediately. In the event that the UK leaves the EU without a deal manufacturers will be able, for a period of time, to continue to use the CE marking when placing their products on the UK market (if their product meets the relevant EU requirements). This would include products that have had any necessary third-party assessment carried out by an EU-recognised notified body. The Government would consult businesses before taking a decision on when this period would end.

(2) Products being exported to the EU will need to carry the CE marking (CE mark) to demonstrate compliance with the relevant EU regulatory requirements.

(3) Manufacturers will need to use the UK marking if their products require third party assessment of conformity and if this has been carried out by a UK-based Notified Body (post-exit called an ‘Approved Body’). In that case you will have to apply the new UKCA marking after 29 March 2019 as the EU will cease to recognise UK notified bodies. This will not be the case if the certificate of conformity has been transferred to an EU-recognised Notified Body (in which case the CE marking would apply, and would be valid for both the EU and UK markets.

Questions about the UK mark should be sent to BEIS in the first instance: goods.regulation@beis.gov.uk  They are receiving a high volume of correspondence at the moment but will endeavour to get back to you as soon as possible.

I am hearing that CE marks can continue for medical devices, I will post a separate post when I have more details.