Latest Change To The Rules Announced By The Government May Not Be The Last

The Government has recently announced a change to the rules governing product marking that businesses must be prepared for when the Brexit transition period ends on 31 December 2020.

While the European CE markings can be used until 1 January 2022 ‘in most cases’ to give businesses time to adjust, lawyers at Irwin Mitchell are urging manufacturers that they still need to prepare for the UK Conformity Assessed (UKCA) mark that comes into effect on 1 January, 2021.

Certain products will need the new UKCA mark immediately, and whilst those businesses affected should have taken the necessary steps, others could be caught out by last minute changes, or by misunderstanding the key changes recently announced. The changes state that: 

• the CE mark will only be valid in Great Britain where GB and EU rules remain unchanged;

• the UKCA mark will not be valid in the EU, so products sold in the EU will still need a CE marking from 1 January 2021;

• for products placed on the Northern Ireland market, the CE marking or the UK(NI) marking should be used;

• products will need a UK Declaration of Conformity – a document for products lawfully using the UKCA mark (this will be largely the same as the EU Declaration of Conformity), which lists the applicable UK, rather than EU, legislation and UK designated standards;

• records should be kept which demonstrate that such products conform with the relevant regulatory requirements applicable to the specific product; 

• until 1 January 2023, other than for goods with special rules, the UKCA mark can be a label, but from 1 January 2023, it must be affixed directly to the product; and

• the new rules do not apply to existing stock ready for market before 1 January 2021, which have a CE marking.

Expert Opinion

“The continuity period, coupled with not applying changes to existing products, gives businesses vital room for manoeuvre. It is clear that the UK intends to mimic the process involved in achieving a CE mark with the UKCA mark. The technical requirements a product must meet, plus conformity processes, assessments and standards used to demonstrate conformity, will all remain largely unchanged and should make transitioning easier.

“On the face of it, the changes represent a practical approach to the product marking conundrum, but the devil is in the detail. Should the EU change its rules for example, products marked based on them will be unable to use the CE mark to sell in Great Britain, even before 31 December, 2021. In this case, the UKCA mark would be needed in addition to the CE mark, to take account of the different rules for the UK.

“As trade talks between the UK and EU continue, nothing can be taken for granted. The continuity period should make things easier, but it remains to be seen if the UK bodies responsible for the UKCA marking will find themselves overwhelmed by applications on 1 January, 2021. With less than 15 weeks until the UK’s departure, businesses should prepare for all eventualities.”
Stuart Padgham - Partner