Brexit and Product Manufacturers – Preparing for the New UK Conformity Assessment (UKCA) Mark
22 September 2020
The UK Government recently published its latest guidance on the use of the new UK product marking – the UKCA mark. Guidance on placing goods on the market in Great Britain from 1 January 2021 was also published on the same date (together, the Guidance), and provides further detail on how the UKCA mark regime will impact manufacturers from that date. The Guidance updates manufacturers on what they’ll need to do from 1 January 2021 when it seems the new UKCA mark will come into use. The MHRA advise that the Guidance will be updated if anything changes. Below, we have set out answers to some of the questions that will be raised for manufacturers in light of this development.
What is the scope of the product areas that the Guidance applies to?
The Guidance applies generally to most of the product areas that the UKCA mark will apply to, including toy safety, recreational craft and personal watercraft, simple pressure vessels, electromagnetic compatibility, non-automatic weighing instruments, measuring instruments, lifts, ATEX, radio equipment, pressure equipment, personal protective equipment, gas appliances, machinery, outdoor noise, ecodesign, aerosols, low voltage electrical equipment and restriction of hazardous substances. The Guidance, and this update, does not cover certain product areas however, including medical devices, rail interoperability, construction products and civil explosives, as there is separate guidance for these product areas.
What goods will be affected?
The UKCA marking will be the applicable mark for, and will come into use for goods being sold in, Great Britain (England, Scotland & Wales) from 1 January 2021 onwards. Most, but not all, products that are currently covered by the CE marking will fall within scope of the new UKCA marking. Additionally, the UKCA marking will apply to aerosol products.
When does the new UKCA mark come into use?
The UKCA marking can be used from 1 January 2021. For most products within scope of the Guidance, there is a one year transition period whereby the CE marking may still be used until 1 January 2022. During the transition period, the CE marking will only be valid for areas where Great British and EU rules remain the same. From 1 January 2022, manufacturers will be required to use the UKCA marking when the CE marking will no longer be recognised in Great Britain.
For some products however, manufacturers will be required to use the UKCA marking immediately from 1 January 2021 (see more details below).
In what circumstances must manufacturers apply the UKCA marking immediately from 1 January 2021?
This requirement will apply where a product:
Is for the Great British market
Is covered by legislation requiring UKCA marking
Requires mandatory third-party conformity assessment; and
The conformity assessment has been carried out by a UK conformity assessment body and the manufacturer hasn’t transferred its conformity assessment files from its UK body to an EU recognised body before 1 January 2021
This requirement does not apply to existing stock however, for example if a good was fully manufactured and ready to place on the market before 1 January 2021. In such cases a product can still be sold in Great Britain with a CE marking even if covered by a certificate of conformity issued by a UK body.
What rules will apply to the continued use of the CE marking?
As noted above, the Guidance provides for a transition period that applies to most product areas whereby manufacturers can continue to place CE marked goods on the Great Britain market before 1 January 2022. The criteria that must be satisfied to enable continued use of the CE marking until 31 December 2021 are:
You currently apply the CE marking to your goods on the basis of self-declaration
Any mandatory third-party conformity assessment was carried out by an EU-recognised notified body (including a body in a country with which the EU has a relevant mutual recognition agreement), or
The certificate of conformity previously held by a UK approved body has been transferred to an EU-recognised notified body
In addition to this, manufacturers may only place CE marked goods on products that meet EU requirements in Great Britain where Great British and EU rules remain the same. The rules are intended to be the same on 1 January 2021, and at present, there are no UK plans to diverge from the rules, although this may change in the future. Furthermore, if the EU changes its rules resulting in different product laws for the EU and the UK in any product area, the CE marking will no longer be able to be used for that product area for products placed on the market in Great Britain during the transition period.
Will the UKCA mark be recognised in the EU?
No, the UKCA mark will not be recognised on the EU market, and products currently requiring a CE marking will still need a CE marking for sale in the EU from 1 January 2021.
Will the UKCA mark be recognised in Northern Ireland?
No, the UKCA mark will not be recognised on the Northern Irish market. According to the Northern Ireland Protocol, products currently requiring an EU conformity marking for sale in Northern Ireland will continue to need to use this marking. The UK(NI) marking is a new product marking that accompanies, but does not replace, the relevant EU conformity mark on certain goods being placed on the market in Northern Ireland. Further guidance on marking products for sale in Northern Ireland is available here.
How should the UKCA mark be applied?
There are specific rules for using the UKCA image that must be adhered to including proportion ratios; a minimum 5mm height requirement (unless otherwise specified in the relevant legislation); and the UKCA marking must be easily visible and legible (and from 1 January 2023 it must be permanently attached). Further details are available here.
The rules in relation to the application of the UKCA mark vary across product types; however, general transitional measures apply to most product types. Until 31 December 2022, the UKCA mark can be placed directly on the product or on an accompanying document, and after this date the UKCA mark must be placed directly on the product.
Are there are other general rules relating to the use of the UKCA mark?
The following rules in relation to the new UKCA marking also apply:
UKCA markings must only be placed on a product by a manufacturer or their authorised representative, where allowed for in the relevant legislation
when attaching the UKCA marking, a manufacturer (or their authorised representative) takes full responsibility for the product’s conformity with the requirements of the relevant legislation
A manufacturer (or their authorised representative) must only use the UKCA marking to show product conformity with the relevant UK legislation
A manufacturer (or their authorised representative) must not place any marking or sign that may misconstrue the meaning or form of the UKCA marking to third parties
A manufacturer (or their authorised representative) must not attach other markings on the product that affect the visibility, legibility or meaning of the UKCA marking, and
The UKCA marking cannot be placed on products unless there is a specific requirement to do so in the legislation
Can the UKCA mark and the CE mark be placed on goods at the same time?
Yes, products can be both CE marked and UKCA marked as long as they comply with the relevant EU and UK requirements.
Preparation is key - businesses should start to consider how the Guidance applies to their business and how they can prepare for the upcoming changes outlined above ahead of the end of the transition period on 1 January 2021. However, given the changing nature of the situation, businesses should keep abreast of any further developments over the coming months and be aware that the Guidance may still be subject to change.
For more information on the impact of Brexit on your business operations, contact a member of our Product Regulation & Consumer Law team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.