Brexit marks the spot

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Adam Bernstein discusses the well-known CE marking on products is being replaced and why time is running out to sell stock with this safety mark.

New product marking rules have changed 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 firms in the sector would do well to understand the changes — and it’s all to do with Brexit.

Following the end of the Brexit transition phase, the well-known CE mark on many products sold across the UK was 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 December 31, 2021, easing the pressure on businesses.

The old position

Certain goods including machinery, electrical equipment, and toys placed for sale in the European Economic Area (EEA) had to bear the CE mark — the manufacturer’s declaration that its product met 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. Manufacturers, or their authorised representatives, must maintain the technical documentation about a product so it can be made available to the authorities upon request.

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 applies in Great Britain. It does not apply in Northern Ireland which will continue to use the CE mark. Like 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 the products meet the requirements. This means that they should also see certificates of conformity and technical files and ensure any labels contain the requisite information, including the UKCA mark before they’re placed on the market. The actual conducting of the required testing and certifying that the products meet the UKCA/CE mark requirements rest with the manufacturer.

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 mark can be used from January 1, 2021. However, firms will still be able to use the CE mark until January 1, 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 January 1, 2021 and January 1, 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. Where rules in the EU are changed and a firm CE marks their product based on these new EU rules, it would not be able to use the CE marking to sell in the UK during 2021. It is therefore recommended that firms use 2021 to get rid of existing stock only, and that any required changes to certification are implemented as soon as reasonably practicable.

In certain narrow circumstances, the UKCA mark should be used from January 1, 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 fi rm didn’t transfer its conformity assessment files from its UK body to an EU recognised body before January 1, 2021. This does not apply to existing stock. For example, if a product was fully manufactured and ready to place on the market before January 1, 2021, it could still be sold in the UK with a CE mark, even if covered by a certificate of conformity issued by a UK body.

Penalties

The penalties for non-compliance with the UKCA requirements remain the same as for non-compliance with the CE marking requirements as they are derived from the EU legislation. 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 January 1, 2021.

Often, where market surveillance authorities find that a firm has failed to meet CE marking requirements, they will provide an opportunity to comply. However, in more serious cases of non-compliance, there is the possibility of a potentially unlimited fine and imprisonment.

It’s a fact that now the UK is fully outside of the EU and the transitional period has ended, the ground rules have changed. Firms should familiarise themselves with the changes to product safety marking and how these apply to their business. Times are tough enough right now without having to deal with official intervention.