Big day today for products law in the UK. With 4 months until the end of the UK’s transition period out of the EU, the UK government has issued guidance here on placing manufactured goods on the market in Great Britain (GB) from 1 January 2021. This includes guidance here on when the new UKCA mark should be used and how to use it. Whilst the content isn’t enormously surprising, you should note the short time frames involved here and plan for how you are going to comply now that we have certainty on dates and transition periods. There is also potential here to get tripped up, with Northern Ireland being treated differently to GB, understanding the concession for existing stock, the switch in focus from EU to UK and the fact that UKCA marking will apply immediately from 1 January 2021 to some products.

We urge all those manufacturing and distributing products in the UK to read the guidance proper and consider what immediate action is needed. In theory, the position here could change in the event a trade deal were negotiated but given the remaining time left prior to the end of the transition period, this looks increasingly unlikely and it would be prudent to plan with this guidance in mind.

Here’s our initial summary of what was published today.

Placing manufactured goods on the market in Great Britain from 1 January 2021

This guidance is about placing manufactured goods on the market in GB which is England, Wales and Scotland. There is different guidance if you are placing manufactured goods on the market in Northern Ireland from GB (here) and placing manufactured goods on the market in Northern Ireland from the EU (here).

We have pulled out the following key points:

  • You should identify which rules apply from 1 January 2021 and the guidance focusses on goods which are subject to the EU’s “new approach” product safety rules, which includes toys, electrical and electronic equipment, and personal protective equipment. There are different rules for chemicals, medicines, vehicles and aerospace.
  • You should check to see if you need to change your conformity assessment or marking (see below for further information on using the UKCA mark).
  • Authorised representatives and responsible persons based in the EU will no longer be recognised in GB from 1 January 2021. If you need or choose to use an authorised representative or responsible person, they will need to be UK based in the UK for products being placed on the GB market.
  • You should check whether your legal responsibilities are changing. For manufacturers, these will remain largely unchanged but for UK based distributors and suppliers, you should be mindful that you may become an “importer” if you are the person bringing goods into the UK from outside the UK and placing them on the GB market. In which case, you will assume certain responsibilities for labelling and ensuring compliance with UK rules. For example, goods will need to be labelled with your company’s details, including your company’s name and a contact address (until 31 December 2022 you can provide these details on the accompanying documentation rather than on the good itself).
  • Existing stock that has been fully manufactured and marked can still be placed on the GB market after 1 January 2021 with existing markings and notified body numbers. It is not currently clear when this concession ends.
  • The guidance links a helpful table which cross references current EU legislation and corresponding UK legislation.

Using the UK CA mark

  • What products are covered?
    • It covers most goods which currently require CE marking together with aerosol products (the guidance contains a list of products covered).
    • Note that there is separate guidance for construction products, medical devices and rail interoperability and we will blog on these separately.
  • Does this apply to the UK or Great Britain (GB)?
    • This applies to products being sold in GB (England, Scotland and Wales).
    • It cannot be used alone for goods placed on the market in Northern Ireland which will require CE marking or UK(NI) Marking.
  • When does this apply from and is there a grace period?
    • It can be used from 1 January 2021 for products being sold in GB.
    • There will be a grace period and the CE mark will be permissible in most cases until 1 January 2022 but some products being placed on the will require immediate UKCA marking (see below)
    • However, CE marking will only be valid during this time where GB and EU rules remain the same. If the EU changes its rules and you CE mark against those new rules, you will not be able to use that CE marking to sell in GB even before 31 December 2021.
  • Products requiring UKCA marking immediately after 1 January 2021
    • UKCA marking immediately after 1 January 2021 will be required if all of the following apply. The product: (Note on this topic, the guidance talks about compliance “immediately after” 1 January 2021 on this item, as opposed to references elsewhere in the guidance “from” 1 January 2021)
      • Is for the GB market
      • Is covered by legislation requiring UKCA marking
      • Requires mandatory third-party conformity assessment
      • The conformity assessment has been carried out by a UK conformity assessment body
    • However, existing stock which was ready to place on the market before 1 January 2021 can still be sold in GB with a CE mark even if covered by a certificate of conformity from a UK body (note that there is a discrepancy for this concession between the UKCA marking guidance which says 1 January 2020, and the more general guidance we discuss above which says 1 January 2021, we anticipate it is 1 January 2021 but will clarify). As mentioned above, it is currently unclear how long this concession will last.
  • General rules
    • For the UKCA mark, these largely mirror the general rules around CE marking. For example: the mark must be visible and legible; it cannot be placed on products unless there is a specific requirement to do so; you must maintain technical documentation to evidence conformity for up to 10 years from placing the product on the market.
    • The technical requirements (also known as “essential requirements”) your product must meet are described as being “largely” the same as they are now.
    • The rules around the UK Declaration of Conformity will be largely the same as what is currently required under EU law but take care that you reference relevant UK not EU legislation, and UK designated standards as appropriate.
    • From 1 January 2021, the UK standards will be the same in substance and reference as the standards used in the EU. However, the prefix ‘BS’ will indicate they are standards adopted by the British Standards Institution as the UK’s national standards body.
  • Transitional measures
    • Until 1 January 2023, for most goods (other than those subject to special rules) you can choose to place the UKCA mark on a label affixed to the product or on an accompanying document as opposed to the product itself, but you will need to take reasonable steps to ensure the marking remains in place.
    • Thereafter, the UKCA mark must, in most cases, be affixed directly to the product.

Next steps

This guidance raises interesting questions about what will amount to existing stock, how long the existing stock concession will last and how the movement between goods between GB and Northern Ireland will work in practice. This is a very quick digest on our part, and we will blog in more depth in the days and weeks to come. But our initial advice is that if you have not already, you should consider how this impacts your products and how you are going to achieve compliance. We are here to talk and help you through this!

Posted by Claire Temple

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