Brexit transition periods for product safety and compliance post-2020

United KingdomScotland

The imminent changes to product safety and compliance laws, by virtue of the UK leaving the EU, have been the subject of much debate. It has now been announced that there will be further transition periods after the end of the current extension and new requirements will take effect on dates specified between 1 January 2021 and 1 January 2023.

This news is well received by industry, including those that have lobbied for an extended period of reliance on current marking practices, given the proximity to the end of the current transition period. Despite its warm welcome, there is still work to do to translate this into the legal framework and a lot of guidance for businesses to get to grips with.

Two key practices impacted are, firstly the use of the UK Conformity Assessed (or UKCA) mark to replace the European Conformity (or CE) mark, and secondly the requirement to mark the name and address of the importer on goods placed on the market.

UKCA mark – phased application from 1 January 2021 to 1 January 2023

From 1 January 2021, the UKCA mark will replace the CE mark for products placed on the market in Great Britain. However, current government guidance indicates that the CE mark may still be used and relied upon for compliance purposes for an additional year. From 1 January 2022, the CE mark will not be recognised for goods placed on the market in Great Britain, unless it is also UKCA marked and complies with the relevant UK laws.

One exception to the legal requirements as they would apply by operation of transfer of law from EU to UK law at the end of the transition period, is that between 1 January 2021 and 1 January 2023 businesses will have the option to affix the UKCA marking on a product or on an accompanying document, i.e. it does not have to be on the product itself. This does not apply to all goods, so check before relying on this exception.

It is made clear that the CE mark will only be valid in Great Britain for areas where UK and EU rules remain the same, so if the EU passes legislation after 1 January 2021 and a business CE marks its products on the basis of those new rules, those goods would need to be conformity assessed and marked according to the UKCA regime in order to be placed on the market in Great Britain.

Assuming this becomes enforceable law from 1 January 2021 in accordance with the current government guidance, there will be some goods where the UKCA mark is required on the product along with associated conformity assessment from 1 January 2021 despite the phased application. This is where the goods require mandatory third-party conformity assessment, the conformity assessment has been carried out by a UK conformity assessment body, and the conformity assessment files have not been transferred to an EU recognised body before 1 January 2021. Any such conformity assessment files should be transferred before the end of the transition period.

Importer and EU representative details

According to EU law, importers mark goods with the EU importer’s business name and address as the primary contact in the event of a product safety incident. Where applicable EU laws are being passed as UK territory laws, this means that products imported into the UK would need to display a UK business name and address from the end of the transition period. Under the same principle, goods imported into the EU from the UK would need to mark an importer or authorised representative in the EU member state as the importer. However, recent government guidance put in place a second transition period of a further 18 months for the EU Importer marking requirement, meaning that goods marked with an EU importer could circulate on the UK market for this period, without an associated UK importer address. However, reliance on a transition period for goods placed on the market from 1 January 2021 should be approached with caution as this guidance is currently withdrawn. The expectation though is that this second transition period for this specific requirement will come into effect in the future i.e. there will be a further 18 months or more when the goods can display an EU importer. This should become clear when the next version of the guidance is published.

Providing some comfort, pending the updated guidance on UK product safety and the solidification in law of the requirements, there is some authority that products placed on the market before 1 January 2021 can continue to be sold until the inventory is cleared. However, the legislative backdrop is yet to be solidified. The origin of this quite wide exception to the EU importer rule is in the Withdrawal Agreement, and although it has been ratified into UK law in the Withdrawal Agreement Act, it is not supported with any definitions of terms such as ‘goods’ that can be sold – i.e. is it a batch of goods, or linked to a particular design or manufacturer? Businesses should take care if relying on this, and time should tell the detail.

If exceptions or transition periods do not apply, or if the legislation that is passed does not reflect current indications, then remedial measures should be considered. This could be working with your supply chain to enable safety management in the event of a product safety incident, or ensuring that the correct entity is marked for if the regulator, a competitor or a consumer have claims or complaints. As a last resort you can agree an enforcement position with the regulator to avoid enforcement action.

Co-authored by Oliver Bristow (Trainee, CMS Sheffield)