The EU’s laws on products generally have meant that, subject to compliance with the appropriate regulatory regime, products can be manufactured, assessed for conformity, labelled and distributed across the EU in a largely straightforward and uncontroversial manner. This applies to most goods subject to EU wide product specific rules. Certain products such as chemicals and pharmaceuticals will attract specific standalone provisions to allow EU wide market access. Other products such as toys, cosmetics, machinery, pressure equipment are regulated under a harmonised “new approach” .
The imminent exit of the UK from the EU will alter that position for the supply of goods into the UK, particularly in circumstances of a “no-deal” Brexit. At matters currently stand, the landscape in terms of regulation, market surveillance, product recall and ensuing potential litigation risk, is unclear.
The Withdrawal Agreement envisaged specific provisions for all goods on the market at the time of the UK’s exit from the EU, but this, of course, is subject to that agreement being adopted .
What happens in the event of no-deal?
The UK government published a technical notice in September 2018 which provides guidance in the event of a no-deal scenario, which applies to so called “new approach” products : This guidance suggests that after 29 March 2019, goods that were compliant from an EU perspective before exit day can continue to be circulated and placed on the market in the UK but for a time limited period only (such time limit to be specified). Similar guidance for other sectors which have their own standalone regulatory regimes to allow EU wide market access was published on 15 February 2019 .
Some further guidance in the event of no deal has recently (early February 2019) been published by the UK government in the form of The draft Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 (“The Regulations”) . The Regulations, once approved, are intended to come into force on the day of Brexit, but have yet to be approved by the UK Parliament.
Critically, the Regulations expand on the previous guidance and propose the introduction of a new “UKCA” marking which will be required in some cases. This stands for “UK Conformity Assessment.” The Regulations will therefore require manufacturers planning to place products on the UK market in the event of a no deal to be in compliance with the new UK regime, as well as balancing existing obligations with suppliers remaining within the EU market. Non-compliance with the new UK regime, if introduced, could lead to regulatory exposure and possible litigation with supply chain partners. Equally, the position in terms of regulatory compliance will need to be carefully monitored for goods which are imported from the UK into the EU market.