Recent UKCA announcement not all that it seems – yet?

On 1 August 2023, the UK government’s Department for Business and Trade announced its intention to indefinitely extend the period of recognition of CE marking for a wide range of products. The announcement could herald a change of course which many businesses will welcome; the implication being that manufacturers and importers will now be able to choose whether to use the EU’s CE conformity assessment procedure and affix affected products with a CE marking, or use the UK’s assessment and UKCA mark for Great Britain (“GB”), beyond the existing December 2024 deadline, and avoid a cliff-edge scenario. This could also simplify product safety compliance requirements for goods sold in GB.

However, this significant U-turn is likely to be very frustrating to those who had already spent considerable time and money implementing the UKCA regime on the basis of the UK’s prior firm stance that the CE mark and related EU certifications would not be acceptable for many in-scope products.

It also leaves questions unanswered, at least for now; in particular will the CE marking alone be acceptable? – this is not explicit in the announcement, which notably talks about the CE mark being used ‘alongside’ UKCA, and at the time of writing, the guidance has not been updated in any meaningful way. What is the position regarding Notified Bodies? What will happen as regards products or regulatory regimes that have not been included in the Department’s list? For example, ecodesign or restriction of hazardous substances (RoHS). Further guidance is expected in respect of certain products and has already been released for medical devices, but as yet there is no clarity on, for example, RoHS rules. Other more general issues also still need to be addressed, such as how this will work where EU standards diverge (and are not simply stricter). Finally, it does also raise a wider question as to whether the UK government will refine its stance on other post-EU exit positions, such as in the UK chemicals and food regimes, which have proved especially complex and onerous to implement and received similar backlash from industry.

Background

CE marking is used throughout the EU to certify that products meet the bloc’s safety, health and environmental protection standards. The CE mark can only be affixed to products once they can demonstrate they meet fixed requirements, through a process of self-declaration and testing by the producer. The mark must appear on products before they can be placed on the market within the EU and must be visible to consumers.

In 2019, the UK government brought in regulations to replace CE assessment and marking with a separate certification for GB, under a new UKCA mark. The aim was to introduce a new certification process for GB products, that would in time allow the product standards to diverge from those of the EU.

The regulations required importers and manufacturers to switch from the CE to UKCA mark by the end of the transition period on 31 December 2020. The UKCA mark is not recognised by the EU, meaning it would only be required for goods sold in GB.

The Government postponed the deadline three times, with the most recent deadline being 31 December 2024.

Under the extended transition period, companies could affix either the UKCA or CE mark to products sold in GB, meaning companies did not have to go through a separate conformance process if they already have CE marking. However, with the deadline looming, there were concerns from industry that the UKCA regime would be expensive and difficult for companies to implement.

What has changed?

The announcement “indefinitely” postpones the deadline for replacing CE marking for certain listed product types. The intention behind it appears to be to continue the existing flexibility for importers and manufacturers to choose certifying these goods through either UKCA or CE procedures and marking for the foreseeable future. The announcement suggests that companies will not be required to go through the certification process twice, which will reduce the administrative burden for compliance. 

Comment

The “indefinite” extension of the transition period will be welcome news to many businesses. However, the government has stopped short of abandoning separate UK certification entirely and there remain practical gaps. For example, most consumer product electrical and electronic equipment will be subject to RoHS and many subject to ecodesign rules, but there is an easement for radio equipment regulations and not for RoHS or ecodesign, so queries remain on practical application until all relevant government departments declare their position.  Also, significant new laws are being implemented in the EU (and Northern Ireland as applicable) as part of the European Green Deal which continually need to be factored in to compliance assessment.

The announcement leaves the door open on a future UK-only mark, stating the measure aims to give companies “longer term certainty”, to avoid a “cliff edge moment”, suggesting it is not a full reversal but rather a temporary measure. It also stops short of expressly saying only the CE mark will be needed, and rather currently states that the CE marking can be used “alongside UKCA marking”. This point may be clarified once amendments to the relevant regulations and guidance are published. The accompanying statement by the Federation of Small Businesses (which is quoted in the government’s announcement) further states this change will “allow time for small businesses to adjust to the UKCA marking system”, suggesting the long-term plan to remove the CE conformity assessment remains in place. This appears consistent with the UK Medicines and Healthcare Regulatory Agency’s confirmation that no “indefinite” extension will be granted in respect of medical devices, and serves as further evidence that the long-term removal of CE conformity assessment and marking for GB, is still on the agenda.