With a no-deal Brexit still a possibility, importers must understand how they can facilitate the movement of goods regulated under the 'New Approach’ framework, writes FIRA’s Suzie Radcliffe-Hart.
The European Union (Withdrawal) (No. 6) Bill (HL Bill 202) has been proposed in order to “Make further provision in connection with the period for negotiations for withdrawing from the EU”, effectively extending this period by a further three months to the 31st January 2020.
The sum of the bill is to force the PM to write to the EU 27 seeking another extension to the Article 50 withdrawal period, preferably to 31st January 2020.
Interestingly, in the event that the EU agrees to a proposed extension, the bill requires the Prime Minister to agree to the exit date – whether this be to the proposed 31st January 2020, or any new exit date which may then be proposed by the EU. This last is, of course, subject to further approval in the House of Commons.
As we are still facing uncertainty, this article is written from the perspective of a no-deal scenario.
Broadly speaking, product and consumer goods legislation is effectively applied in three categories: Old Approach – described as stand-alone Regulations, typically covering goods such as cars, pharmaceuticals and chemicals; New Approach - essential high-level requirements are given in legislation and compliance is determined by using a series of harmonised standards such as those covering toys or machinery; and Non-harmonised goods – where no CE marking is required, goods are subject to national as opposed to EU legislation.
Currently, EU legislation sets out the ‘essential safety requirements’ which certain products must meet before they can be placed on the EU market.
For some of these product areas, manufacturers can choose to demonstrate compliance with these essential requirements by meeting specific ‘harmonised standards’, the reference of which has been published in the Official Journal of the European Union (OJEU). These particular documents when referenced in the OJEU are considered to offer a “presumption of conformity” with the relevant directive under which they are listed.
Some New Approach Directives require a specific Conformity Assessment to be undertaken by a Notified Body before the product can be placed on the market. In this case a product will feature a CE mark and the notified body reference will appear on the product and or its packaging.
Others allow the product to be placed on the market – again with the CE marking attached – without a specific Conformity Assessment being undertaken by a Notified Body.
How processes will change post-Brexit
As BSI, the UK’s National Standards Body, is not a Government body, and CEN and CENELEC are not EU parliamentary organisations, they are not affected by Brexit. This means there will be no change in the use of European standards and we will not suddenly see the resurrection of previously superceded British standards, many of which were withdrawn tens of years ago.
Product marking and specific Conformity Assessments will, however, change, although not immediately.
Products bearing the CE mark that have already been placed on the UK market will be able to continue to circulate within the UK post-Brexit. In addition, products that meet EU legislative requirements via a specific Conformity Assessment undertaken by an EU Notified Body can still be placed on the UK market, although this is likely to be a time-limited measure.
Whilst the EU has made it quite clear that certain compliance activity undertaken in the UK, including Conformity Assessments performed by UK Notified Bodies, will no longer be recognised the UK has chosen to adopt a more continuity based approach, albeit for a limited period of time by accepting Conformity Assessments, where relevant, that have been undertaken by EU Notified Bodies. This is intended to minimise disruption by allowing CE-marked goods to be brought into the UK.
In the meantime, UK equivalent legislation has been established for those goods currently covered by EU regulatory frameworks, and there is expected to be no change in requirements for the period immediately after exit as the UK requirements will mirror those of the EU.
New UK Approved Bodies and compliance marking
For the areas covered, previously so-called Notified Bodies based in the UK will be granted new UK ‘Approved Body’ status and listed on a new UK database.
UK Approved Bodies will be able to undertake specific Conformity Assessments for the UK market against UK essential requirements (which, immediately after exit day in a no-deal scenario, will be identical to EU essential requirements).
Manufacturers selling goods on the UK market will then be able to affix a new UK Conformity Assessment mark (UKCA) to the product and or packaging before placing a product on the UK market.
Manufacturers will not need to use this new UK-specific marking from the point of exit in a no-deal scenario if they have used the relevant CE marking and their product has been assessed by an EU recognised body. Again, this will be a time-limited arrangement.
UKCA marking
Currently, when considering the New Approach framework, a CE Mark can be applied to a product either following a self-certification process or, where required, through a third-party Conformity Assessment undertaken by a Notified Body.
For a time-limited period, the UK will continue to accept goods bearing the CE mark and Conformity Assessments performed by an EU Notified Body.
New UK specific legislation has been implemented which enables self-certification and conformity assessment to be undertaken by a UK Approved Body, and the new UKCA mark applied. Whilst during the continuity period the UK will accept goods marked with the CE mark and conformity assessments by EU Notified Bodies, where a conformity assessment has been undertaken by a UK Approved Body, the UKCA mark must be applied.
In the case of self-certification, in order to place on both the UK and EU markets, the UKCA mark and the CE mark can both be used on the proviso that the product meets the requirement of both UK and EU requirements.
In the case of goods covered by specific conformity assessments undertaken by both a UK Approved Body and an EU Notified Body in order to place on both the UK and EU markets, the UKCA mark and the CE mark along with the respective Approved and Notified body details can both be applied to a product.
Important notes for distributors
UK-based distributors may, in the event of a no-deal, become importers respectively, and therefore must ensure they are aware of the increased responsibilities of importers. This includes additional obligations in relation to product safety and compliance and in the marking of the product with the importer's address. Where in doubt, legal advice should be sought.
Whilst there remains a requirement to place the importer's address on the product or the packaging, the UK recognises that this may not be immediately practicable and as such a short transitional period of 18 months (after the date of exit) has been agreed, during which time a newly classified importer may include their details on a slip of paper with the product, as opposed to marking on the product itself.
It is important to note that this transitional measure applies for goods brought into the UK only, it is not mirrored by the EU.
Harmonised standards
Existing harmonised standards (used to demonstrate conformity with the essential safety requirements of an EU Directive) will become UK ‘designated standards’, and will continue be used to demonstrate conformity with UK essential requirements. As noted above, immediately following exit these will be identical to EU essential requirements.
What this means for manufacturers
If you are a manufacturer intending to place products on the UK market on or after 31st October 2019, you should note that: products that meet EU requirements can continue to be placed on the UK market without any need for retesting or re-marking, including where they have demonstrated compliance with EU requirements after exit day – this will apply for a time-limited period, and sufficient notice will be given to businesses before that period ends; products that meet UK requirements and bear a UK conformity marking can be placed on the UK market, as long as any third-party testing required has been carried out by a UK-recognised conformity assessment body; and, for product areas covered by this notice, UK-based notified bodies will become UK approved bodies after March 2019, and will be listed on a new UK database.
Suzie Radcliffe-Hart, technical manager at FIRA International and secretary of the Furniture Industry Research Association, has compiled a 64-page guide entitled Brexit – the importance of planning ahead, which is freely available to all members of the Furniture Industry Research Association here.
