New product marking rules are about to change the landscape for those in the supply chain from manufacturer to retailer. While there are some similarities between old and new, there are many differences and product-related businesses would do well to understand the changes, writes Claire Burrows and Francesca Poole.
Following the end of the Brexit transition phase, the well-known CE mark on many products sold across the UK will be replaced by the new United Kingdom Conformity Assessed (UKCA) mark.
The good news is that, unlike other product labelling requirements, the UKCA marking requirements have adopted a phased approach, with the CE mark remaining temporarily valid on most products until 31 December 2021, easing the pressure on businesses.
The current position
Currently, certain goods placed for sale in the EEA must bear the CE mark – the manufacturer’s declaration that its product meets all the specified essential safety requirements set out in EU directives specific to the particular product type.
EU legislation sets out the rules that manufacturers (or their appointed ‘authorised representatives’) must follow in order to demonstrate that their products comply with the applicable safety requirements. This can include a self-declaration by the manufacturer, the assessment of the final product by an EU-accredited body (known as a Notified Body) or an assessment of a product’s design by a Notified Body followed by testing/quality assurance processes. Until the end of 2020, either the manufacturer or their representative (the ‘responsible person’) must be based within an EU member state.
What is the UKCA mark?
The UKCA mark is essentially the UK equivalent of the CE mark. It is a mandatory mark on a product confirming its compliance with UK product safety legislation and will apply in Great Britain – it will not apply in Northern Ireland which will continue to use the CE mark. Like with the current CE marking, either the manufacturer or their authorised representative will be responsible for affixing the UKCA mark to a product.
It’s worth noting that if a business – a retailer for example – is selling a product under their own label, they too will need to make sure products meet the requirements of the regime.
The difference between the UKCA mark and CE markings
The two markings are largely the same, save for the fact that the UKCA only applies in the UK, only requires information in English and that the UKCA mark derives compliance from UK conformity assessment bodies as opposed to the EU Notified Body System. The EU declaration of conformity with the relevant and applicable product standards will be replaced with a UK-only declaration of conformity to be derived from relevant UK law.
The scope of the products covered, technical requirements and conformity assessment procedures will all remain largely the same as they are now.
What do the changes mean for businesses in the UK?
The UKCA marking can be used from 1 January 2021, however firms will still be able to use the CE mark until 1 January 2022 in most cases, allowing them to get rid of existing stock. This will be the case provided that:
- They currently apply CE marking to their goods on the basis of self-declaration;
- any mandatory third-party conformity assessment has been carried out by an EU-recognised notified body; and
- the certificate of conformity previously held by a UK approved body has been transferred to an EU-recognised notified body.
The ability to use the CE mark on products sold in the UK between 1 January 2021 and 1 January 2022 will only continue for as long as the UK and EU requirements remain the same. Should the UK and EU requirements diverge at a later date, the position will change.
In certain narrow circumstances, the UKCA mark will need to be used immediately from 1 January 2021. These circumstances are where the product is for the UK market, is covered by legislation that requires UKCA marking, requires mandatory third-party conformity assessment by a UK conformity assessment body and the firm hasn’t transferred its conformity assessment files from its UK body to an EU recognised body before 1 January 2021. This does not apply to existing stock, for example, if a product was fully manufactured and ready to place on the market before 1 January 2021, it could still be sold in UK with a CE mark, even if covered by a certificate of conformity issued by a UK body.
What do the changes mean for exports to the EU?
The UKCA marking will not be recognised on the EU market. Where firms sell a product in the UK as well as export the same product to the EU, it is permissible to bear both the CE and UKCA marks on products simultaneously, which will likely afford a large cost saving.
The penalties for non-compliance with the UKCA requirements are likely to remain the same as for non-compliance with the CE marking requirements as they are derived from the EU legislation. At present, the enforcement of the CE mark is undertaken by the UK’s market surveillance authorities which include Trading Standards and the Health and Safety Executive HSE. These enforcement authorities have the ability to request sight of technical documentation to ensure compliance, so it is important that all technical files are up to date and reflect the UKCA marking requirements from 1 January 2021.
In serious cases of non-compliance, there is the possibility of a potentially unlimited fine and imprisonment.
Whilst uncertainty still exists regarding the full implications of Brexit, with not long left until the end of the transition period it is becoming increasingly unlikely that the position set out above will change. Firms should familiarise themselves with the changes to product safety marking and how these may apply to their business.
Claire Burrows is a director and Francesca Poole is an associate in the Regulatory and Compliance department of Walker Morris.
Content extracted from https://www.boatingbusiness.com/news101/comment/business-matters/brexit-marks-the-spot-a-lesson-in-ukca-and-ce-marking