Choppy waters ahead? The future of product safety after Brexit

“From online marketplaces to connected devices, the way we buy products and the products themselves have undergone tremendous changes over the past decades and the pace of change is accelerating. It is essential that regulations keep pace with rapidly changing technology and innovation, and evolving supply models, to ensure the protection of people and the support of businesses to invest and grow. “[1]

The UK has one of the strongest product safety systems in the world, underpinned by product safety legislation that regulates how safe products are supplied and sold, imposing legal obligations on people to the supply chain. This body of law is vast and complex, but more importantly it has recently been affected by our departure from the European Union. In this article, we take a look at the key changes, the implications for business, and what the future holds for product safety regulation.

What are the duties involved?

There is a whole host of tasks that cover product safety, including:

  • Section 6 of the Occupational Health and Safety Act, etc. 1974 (HSWA). This places a general health and safety obligation on everyone in the supply chain, to the extent possible, when items intended for use on the job are used, adjusted, cleaned or serviced. This obligation includes the provision of information and instruction on safe use, including any subsequent revisions of such information, and the tests / reviews necessary to ensure compliance.
  • Consumer Protection Act 1987 (CPA). This is in place to hold manufacturers accountable for the production of dangerous goods. It allows consumers to claim compensation if the defective product has caused bodily injury, property damage, or death.
  • General Product Safety Regulations 2005 (GSPR). These regulations form the basis for ensuring the safety of consumer goods by setting requirements and providing a range of provisions to ensure compliance and enforcement of requirements.
  • Product Safety and Metrology Regulations 2019 etc. (amendment, etc.) (exit from the EU). These are discussed below.

What has changed after Brexit?

The Product Safety and Metrology Regulations, etc. (amendment, etc.) (exit from the EU) 2019[2] entered into force at the end of December 2020, amending a set of sectoral laws on product safety as well as the CPA and the GPSR.

The main changes are[3]:

  • From January 2021, the UK will be classified as a non-EU country (a ‘third country’) and no longer fall under the EU product compliance regime.
  • Distributors who import products from the EU will become “importers” of products into the UK and will be held liable as “producers” for personal injury or property damage resulting from any unsafe product they supply into the UK.
  • The definition of ‘producers’ will be amended to cover UK manufacturers of products or ‘a person established in the UK who places a product on the market from outside the UK’.
  • The current EU CE marking system will no longer apply to the UK. The UK Conformity Assessed (UKCA) marking system will be the new UK product marking used for products placed on the UK market that previously required a CE mark.

A new marking system

The UKCA mark came into effect on January 1, 2021. However, to give companies time to adapt to the new requirements, they will still be able to use the CE mark until January 1, 2022 in most cases.

Companies only need to use the new UKCA mark before January 1, 2022 if the product:

  • is intended for the UK market;
  • is covered by legislation which requires UKCA marking;
  • requires a mandatory third party conformity assessment; and
  • a conformity assessment has been carried out by a UK conformity assessment body.

The UKCA will follow broadly the same principles as the current CE marking system, but the safety and compliance standards, the requirements for authorized representatives / responsible persons and notified bodies will now only be valid for the UK.

It is important to note that the UKCA mark will not be recognized in the EU. Therefore, all products requiring CE marking and sold in both areas will have to comply with both marking regimes. Likewise, the CE mark is only valid in the UK for areas where UK and EU rules remain the same.

It should be noted that companies exporting exclusively UK products to the EU will only be required to use the CE mark and not the UKCA mark as well.

What about the existing stock?

The UKCA marking does not apply to existing stock, that is to say to products manufactured and ready to be placed on the market before January 1, 2021. This means that the CE marking on products manufactured and ready to be placed on the market placed on the market before January 1, 2021 will still be valid.

The government has clarified that CE marking will be accepted in the UK until January 1, 2022 for certain products, including those with a certificate of conformity from an EU-recognized notified body or pre-existing stock. If the item has been fully manufactured, CE marked and ready to be placed on the market before January 1, 2021, there is no obligation to use the UKCA mark even if the certification has been carried out by an organization based in UK. These goods can only be placed on the UK market until December 31, 2021[4], after which the UKCA mark should be used.

In any case, companies should be prepared to use the UKCA marking from 1st January 2022 at the latest[5]. Products will be able to display both the UKCA mark and the CE logo unless and until the rules for these products differ between the UK and the EU. However, it would be prudent to seek to use the UKCA mark as soon as possible, unless that company only exports products to the EU and does not put these items on the UK market.

What does this mean for businesses?

The above changes are expected to have important implications for manufacturers and distributors, with no real idea yet of future practical implications.

What we can say so far is that UK distributors, who will soon be defined as importers or producers, who import products from the EU, will effectively take a ‘top-of-the-chain’ step in terms of responsibilities and responsibilities and will be responsible for ensuring that the producer (outside the UK) has complied with his obligations.

Distributors will be required to display their name, address and a product number on products supplied to the UK. The requirement to label or re-label products is likely to place additional strain on a company’s resources, both in terms of time and money. Newly defined importers and producers will also be responsible for ensuring that only safe products are brought to the UK market and that other producer obligations have been met.

As the UK is now classified as a ‘third country’, this is likely to have an impact on the status of economic operators (i.e. which entity is considered to be the ‘manufacturer’, ‘the importer Or the ‘distributor’) in a supply chain that involves the UK. This is important because under the EU regulatory regime and the new UK regulatory regime, each economic operator will have different regulatory obligations depending on whether they are considered to be the ‘manufacturer’, ‘the’ importer ”or“ distributor ”. These responsibilities cannot be delegated to entities outside the UK (including the EU).

Since the ‘due diligence defense’ is the primary defense available to any business that finds itself subject to enforcement action in this area, any business importing product into the UK or selling a product from outside the UK. UK will need to review and consider improving its own due diligence process to ensure it can demonstrate compliance and appropriate UK risk controls.

Prepare, prepare, prepare!

The above changes mean significant costs for businesses. An impact study[6] has calculated that between 10,000 and 17,000 UK manufacturers and up to 135,000 UK wholesalers and retailers will be affected, with an estimated cost to businesses over a 10-year period of £ 25.7million for branding compliance, £ 3.7 million for conformity assessment and £ 6.6 million for familiarization, for a total of approximately £ 36 million. We are likely to witness confusion in the market, especially for companies operating both in the UK and in the EU.

The changes will also lead to increased responsibilities and obligations, meaning businesses may be more exposed to investigations by UK law enforcement authorities, as well as criminal prosecution and liability, with respect to imported goods.

Prior to the changes discussed above, placing an unsafe product on the market was a criminal offense under the GPSR[7]. Since the breach is a strict liability offense, a company would commit an offense as soon as the dangerous product was placed on the market, regardless of whether the company knew that the product was dangerous at that point and whatever actions were taken. the company could have taken after discovering the security issue.

In the future, failure to ensure that a product is correctly marked UKCA may result in an unlimited fine or up to 2 years imprisonment. Enforcement measures can also result in customs delays, product seizures, stop notices and forced product recalls. As we move into uncharted territory outside of EU membership, companies are advised to familiarize themselves with the changes and check their product liability insurance, to ensure they can navigate the way. potentially rough waters.

About Leah Albert

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