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Product safety marking in the event of a 'no-deal' Brexit

Posted on 25 March 2019

Product safety marking in the event of a 'no-deal' Brexit

The UK government has published information on the new product safety regime, mirroring the previous CE marking requirement, in the event of a 'no-deal' Brexit on 29 March 2019. In summary, manufacturers placing products on the market in the UK will have a choice between continuing to use the existing CE marking (during a limited time period) or the new UKCA (UK Conformity Assessment) mark, where their products can be self-certified. However, where legislation requires an assessment of the product by a third party notified body, and this has been conducted by a UK body, the UKCA will be mandatory.

As for products to be sold in the EU, manufacturers will be able to continue to use the CE marking where their products are subject to a self-declaration. However, the EU will not recognise an assessment by a UK based notified body.

The current framework

The CE marking on a product placed on the EU market signifies that it has been assessed to meet high safety, environmental protection and health requirements. By placing the CE mark on a product, the manufacturer is declaring that it meets all of the aforementioned requirements, and can be sold throughout the EU. Not all products require CE markings, only those subject to specific legislation, such as electrical equipment, toys, and medical devices etc. Whilst, for many products, the manufacturer can apply the CE marking, for other products an assessment by a third-party body is required to confirm that the relevant standard requirements have been met.

Placing products on the UK market post-exit

In the event of a 'no deal' Brexit, in most scenarios, manufacturers will not be required to use the new UK marking immediately. In fact, for a time-limited period only, they will be able to continue to use the CE marking when placing their products on the UK market in so far as the necessary EU requirements have been satisfied. The UK Government will consult with industry and provide notice before ending this time-period. In essence, where the CE marking is based on self-declaration by the manufacturer, this will remain possible, including when exporting products to the EU.

An exception is where products require third-party assessment, and that assessment has been carried out by a UK conformity body. In such circumstances, manufacturers will be required to apply the new UKCA mark to their products before placing them on the UK market. Notified bodies based in the UK will be granted new UK 'approved body' status and listed on a UK database.

The government guidance details how the new UKCA mark should be placed on products.

Placing products on the EU market post-exit

Where a UK manufacturer self-certifies, it will be able to continue to place the CE marking on products in the EU. However, in a 'no-deal' scenario, the EU will cease to recognise the competency of UK-based notified bodies, and so relevant products will need to be re-assessed and recognised by an EU recognised notified body in order for them to be placed on the EU market. Alternatively, UK manufacturers could also arrange for assessments to be transferred to an EU–recognised body pre-exit.

In conclusion, as far as possible, the UK government has sought to keep disruption to a minimum by allowing CE marked products to continue to be placed on the UK market, even if for only a short period of time. The greatest difficulties will be for those products that legally require third-party assessment before being released onto the market and where the assessment has been carried out by a UK conformity body. They will require the UKCA mark to be applied, but will also need to be assessed separately for the purposes of the CE marking.

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