Construction Products Post-Brexit and Grenfell: Are you UKCA (and GSR) ready?
October 2021Introduction
Since the Grenfell Tower tragedy, the regulation of construction products has attracted unprecedented levels of scrutiny and the Government has come under pressure to raise safety requirements. The use of controversial Aluminium composite material (ACM) cladding on the tower was a major contributor to the disaster. It had nonetheless been a lawful material at the time it was commissioned. Even prior to Grenfell, product regulation had been front of mind for manufacturers given changes to the law necessitated by Brexit.
This note looks at two aspects of the laws around construction products. As our title suggests, we will examine the rules around conformity marking for products and the switchover from CE to UKCA (in Part 1 of our note). When looking at the subject of construction products, however, it is impossible to ignore the draft Construction Products Regulations 2022, published by the Government in October 2021 as part of the Building Safety Bill. We review these in Part 2 of our note.
- Conformity product marking
1.1 A summary of the current law on product marking
The EU Construction Products Regulations 2011 (“2011 Regulations”) require construction products to carry the CE mark before being placed on the market. In order to obtain that mark, manufacturers must usually demonstrate to an approved body in the EU that the product meets the standards set out in the applicable harmonised standard for goods of that type.
A product that has attained the CE mark is free to be sold anywhere in the EU single market. The mark must usually be affixed to the product itself or included in accompanying technical documentation. For construction products, documentation will include a “declaration of performance”, drawn up by the manufacturer and attesting to conformity with the “essential characteristics” of the applicable standards for that product. These might include, for example, a required minimum level of fire, wind or water resistance.
The 2011 Regulations also allow manufacturers to affix a CE mark to products that are not fully covered by a harmonised standard. This is by applying for a technical assessment of their product based on a ‘European Assessment Document’ (EAD).
In some cases, it will be possible for the manufacturer to self-certify conformity but that is generally limited to lower risk products and may not be desirable for various reasons. For many construction products therefore, certification will need to be carried out by a third party conformity assessment body (referred to as “EU notified bodies” within the 2011 Regulations).
1.2 The UKCA mark in the GB market
Insofar as the UK is concerned, the Construction Products (Amendment etc.) (EU Exit) Regulations 2019 (the “2019 Regulations”) came into force on 1st January 2021 and made arrangements for post-Brexit regulation of construction products in the UK market.
The 2019 Regulations have modified the 2011 Regulations in relation to products placed on the market in Great Britain. In many respects, the new rules remain aligned to the new regime. Existing European harmonised standards will become UK ‘designated standards’.
The most significant change under the 2019 Regulations has not yet taken effect. The legislation seeks to abandon the CE mark currently used to verify construction products and replace it with the new UKCA (UK Conformity Assessed) marking for goods placed on the GB market. For now, it is possible to apply for the UKCA mark but not mandatory to do so. The CE mark currently holds good as an approved conformity mark for products sold in the UK.
As with the CE mark, self-certification may be available although third party conformity assessment will be needed in many cases. The UKCA conformity assessment can only be administered by a UK Approved Body. That means that any manufacturer wishing to continue to supply the UK market and EU Market, will need to deal with both a UK Approved Body alongside their existing EU Notified Body. Businesses will need to consider whether they also need new declarations of performance.
Where a UK notified body (which became a UK approved body) had carried out tasks or issued certification in relation to the Assessment and Verification of Performance (AVCP) for a product before 1 January 2021, then those tasks and/or that certification may be used to support affixing of the UK marking if the product is placed on the GB market after this date.
1.3 When is CE marking still relevant?
Any GB-based manufacturer exporting products to the EU single market will need to continue to affix the CE mark when selling into the EU market and comply with the related rules (e.g. in relation to the declaration of performance). The CE mark may only be granted by an EU notified body (which now excludes UK approved bodies).
Special considerations will apply where products are placed on the Northern Ireland market. That home nation, for many regulatory purposes, remains part of the EU single market under the Northern Ireland Protocol.
In Northern Ireland, EU conformity markings must continue to be used to show goods meet EU rules. Usually, this is the CE marking. There is a new special “UK(NI)” mark for products placed on the market in Northern Ireland. That will be needed where the goods are subject to third party conformity assessment and a UK body is used to carry out that assessment. A “UK(NI)” marked product may be sold anywhere in the UK. It may be desirable to give the product a dual “CEI + UK(NI)” marking.
“Qualifying” Northern Ireland goods bearing the “CE mark” may also benefit from unfettered access to the UK market even post 2023. This is a complex area; advice should be taken on whether a specific product is indeed “qualifying” and on what evidence is needed to satisfy GB inspectors of that status. Goods sold in the Republic of Ireland or elsewhere in the EU will need to carry the CE mark. Advice is needed on whether a dual “UK(NI) + CE” marking will be sufficient for EU sales.
1.4 Deadline for use of new mark in the GB market
The date for formally ending the recognition of the CE mark for construction products is 1st January 2023. Until then, CE marking can continue to be affixed where a third-party conformity assessment has been undertaken by an EU-recognised notified body. However, after the 1st January 2023, only the UKCA marking will be recognised for products placed on the GB market. As noted above, “Northern Ireland qualifying goods” may benefit from an exception.
The Government initially intended to end the recognition of the CE mark by the end of 2021, however this date was pushed back in August of this year, in order to allow the Building Safety Bill (disclosed below) to achieve Royal Assent.
The changes apply to England, Scotland and Wales. As explained above, the CE mark will continue to be used for products in Northern Ireland. Please bear in mind that other types of product may be subject to different time-frames for switchover.
1.5 What do businesses need to do?
While the deferral of the deadline buys firms some breathing space, that does not mean they should be breathing a sigh of relief.
The Government is urging businesses to comply with the new UK regime as soon as possible and to prepare to affix the new UKCA marking using a ‘UK Approved Body’ (where conformity assessment is required or sought). The time needed to prove conformity should not be underestimated. Even where self-certification is available, third-party testing may need to be commissioned for a plethora of essential characteristics. Advice may be needed on the applicable regime for specific goods. A pre-deadline backlog is also a real possibility.
The manufacturer will be able to affix both the UKCA and CE mark to the same product. However, it should be borne in mind that retaining the CE mark may entail new conformity assessment with a notified body based in the EU 27.
In the short term, technical standards themselves are unlikely to change a great deal, as the British Standards Institution is of the view that harmonised standards remain best practice for both CE and UKCA marking. However, in time, it is expected that UK authorities such as HSE will influence the standards as they see fit. Novel standards may also emerge for “safety critical” products (as explained below). Businesses will therefore be required to keep an eye out for new standards and to be prepared to alter their goods to conform to those. They also need to consider whether new declarations of performance are needed at this point.
Importers and distributors will need to ensure manufacturers keep pace with these requirements. Additionally, distributors established in the UK who bring products in from outside the UK to the GB market from the EEA or are now to be classified as ‘importers’. This change in status will bring new obligations such as:
- a requirement for importers to label their products with their name and address
- ensuring that the assessment and verification of constancy of performance (AVCP) requirements has been carried out by the manufacturer
- the product must bear the conformity marking
- ensuring that the manufacturer has complied with their labelling obligations.
Record keeping continues to be important, as all documentation which evidences that the product meets the regulatory requirements must be kept for up to 10 years after the product is placed on the market. The documentation can be requested at any time by market surveillance or enforcement authorities to check that the product conforms with the statutory requirements.
- Building Safety Bill and Construction Products Regulations 2022
2.1 Purpose of new regulations and coexistence with existing regime
Schedule 9 of the Building Safety Bill, introduced to Parliament in October 2021 sets out draft Construction Products Regulations 2022 (“2022 Regulations”). We provided a report on the passage of the Bill through Parliament earlier this month, which is available here. It is expected that the provisions of the Bill will become law within around nine months from now.
The new 2022 Regulations will sit alongside the existing regulatory framework for construction products in Great Britain, discussed above. The Bill, if passed, will create powers to enable the Secretary of State to extend or amend this regime, to ensure that it remains fit for purpose and continues to meet the needs of the GB market.
As we have seen, the 2011 Regulations depend to a large extent on conformity with technical standards. In the aftermath of Grenfell, it was realised that technical standards do not always exist for every construction product, such as unsafe ACM cladding. Those products were usually not covered by consumer protection legislation. Given that status, the Government could not require them to be withdrawn from the market, even if they could not be used safely.
2.2 The General Safety Requirement
Chapter 2 of the Regulations creates a new “General Safety Requirement” (“GSR”) for construction products.
This would make it unlawful for any construction product (whether covered by designated standards or not) to be put on the market unless it is a “safe product”. According to draft Regulation 6, the product is “safe” when (i) it does not present any risk to the health and safety of persons or (ii) if it does, the risk is as low as it can be compatibly when using the product.
Regulation 10 requires manufacturers to take greater lengths to ensure safety of products before they are placed on the GB market. For example, pursuant to Regulation 10(a)(i) they must carry out a risk assessment identifying “all risks if the construction product is used in accordance with any normal or reasonably foreseeable conditions of use”. The exercise must also set out ways in which those risks can be reduced or eliminated.
Distributors and importers who sell construction products may be required to ensure that manufacturers have complied with their GSR obligations.
The regulations would be tighter still for ‘safety critical’ products (where the failure of such products would risk causing serious injury or death). Amongst other requirements, manufacturers will be obliged to supply clear and accurate performance information when placing such products on the market. The Secretary of State will have the power to commission the creation of new standards for this class of product with a view to protecting the public. We therefore recommend businesses keep a close eye on changes in the evolving standards landscape.
2.3 Enforcement and penalties
Local Trading Standards and the National Regulator for Construction Products, which will be part of the Office for Product Safety and Standards (OPSS), will have a prominent role in enforcing the new regime.
This includes powers to act, for example, where false statements or other misleading or inaccurate claims have been made about the performance of a construction product, (e.g. claims made in marketing or advertising materials). Enforcement authorities will also have the power to carry out investigations of business premises with or without a warrant. Notices may also be served requiring the recall of products adjudged unsafe.
Certain infringements of the new rules will also constitute criminal offences under Chapter 7 of the Regulations. It will also be an offence to obstruct or mislead an enforcement authority.
- Follow-up
If this were not enough to take on board, we should point out that our note has only covered some of the highlights of the new regime!
It is thus clear why the Government has advised all economic operators in the supply chain to consider professional advice on their obligations under the new framework. If we can be of assistance, contact Paul Henty or Felicity Hird.
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