Product Labelling and No Deal Brexit

Photo by Edho Pratama on Unsplash

Introduction

No deal Brexit would mean no agreement to an EU Treaty that would govern UK exit terms.

The UK preparations for such circumstances involves a significant body of legislation designed to ensure continuity in regulatory and fiscal arrangements applicable to UK businesses with, if necessary, fiscal changes that look to neutralise any disadvantages in trading that might otherwise arise.

The preparations have included numerous policy position statements that are designed to avoid cliff edge problems for UK businesses eg the position explained below relating to use of CE product marking.

Notably, the EU has been unwilling or unable to produce solutions to regulatory issues that arise in relation to business dealings between the UK and the EU to anything like the same extent – eg permitting EU businesses to deal in products with CE marking supported by a UK assessment body for a short period of time after exit whilst new arrangements are organised by the manufacturer.

Supply Chains in Manufacturing

If your business receives materials for manufacturing sourced within the UK there are only due diligence considerations regarding the status and quality assurance procedures of your supplier – these considerations being no different to the current position save that you may want to scrutinise the extent to which your supplier is managing any importation responsibilities that it has.

If your business imports materials from EU member states, your status potentially changes to that of product importer. Whilst the UK remains in the EU you are termed a distributor with less responsibility where the products you buy in have been sourced from within the EU.

The issue is relevant if in addition to incorporating materials or products sourced by you for manufacturing, you also supply any of the parts as a component under a spare parts arrangement. In selling on the component you must declare yourself as the importer – not immediately, but at a future date to be announced your details as importer must be on the product or its immediate packaging. Initially compliance will simply involve declaring your importer status on accompanying paperwork.

Product Standards after a no deal Brexit

For many products, CE marking is currently mandatory. The ability to CE mark is derived from relevant EU legislation. The ability to mark may have involved subjecting your product for a compliance review by a conformity assessment body.

UK bodies will, in the event of a no deal Brexit. lose their status as a body entitled to undertake a conformity assessment and the ability to apply the CE mark where this relies on a UK assessment will end.

Products already placed on the market are unaffected. Your EU27 distributors and retailers are perfectly entitled to sell these products lawfully.

For products currently undergoing assessment it is now recommended advice to transfer the assessment responsibility to an organisation with a formal presence in the EU27. Many conformity assessment bodies are able to support the transfer of responsibility and documentation to an appropriate “sister” EU organisation.

Where the necessary conformity status already exists ie your products are already entitled to CE marking, in the absence of your selected assessment body having necessary EU status you should ensure the transfer of supporting documentation and any certificated issued to you to an appropriate representative in the EU or take the product through assessment again with an EU27 recognised organisation.

Placing your products on the EU market after Brexit

Any relationship you have with an EU located business acting as your distributor changes significantly at the point of Brexit no deal.

Your distributor will previously have been able to accept your products on the basis of your representations concerning regulatory compliance without taking any significant responsibility in its own name.

That changes on a Brexit no deal The distributor becomes the party responsible for the importation of the products into the EU. Rules already in existence for imports from other parts of the world will also apply to imports from the UK.

The importer has a legal duty to ensure that if a conformity assessment was necessary for the imported product – that it has been completed. The importer must also ensure that the manufacturer has available all supporting technical documentation, has affixed the CE mark correctly, assured product traceability and provided all necessary product information including safety instructions in the relevant language(s) for the country concerned.

Note also, that the importer’s details – name, registered trade name or trademark and contact address must be endorsed on the product or if not practicable in accompanying documentation.

The importer also has accountability obligations in respect of its decision to import the product concerned.

Products with CE marking in the UK market after no deal Brexit

The Government has indicated that products are lawfully placed on the market following a no deal Brexit for a period of time still to be determined. There will be consultation with industry as part of decision making. This is a welcome acknowledgement that industry faces particular costs due to the necessity in many cases to have the labelling impressed on the product itself – potentially making existing expensive tooling redundant.

UK businesses will in time, however, need to adopt the UKCA mark and follow UK legislation that, at least initially, will largely mirror EU legislation.

The new UKCA Mark

In substitution for the CE mark the UK has developed a new UK specific conformity assessment mark – termed UKCA and illustrated here:-

The approach being taken by the UK is to very substantially to follow current procedures leading to the ability to apply the CE mark.

Dual Marking?

As would be expected products may bear both CE and UKCA marking to meet multiple territorial requirements.

Questions?

Education Legals will be pleased to provide more detailed explanations and advice on issues raised in this note or any other aspect of No Deal Brexit that may be giving concern.

Frank Suttie

frank.suttie@educationlegals.com

CE Marking, UKCA, Product Standards, Labelling

Published by Frank Suttie

Highly experienced legal advisor - working at the interface between public and private sectors.

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