In preparation for the end of the Brexit transition period on 31 December 2020, the UK Government has published guidance on the use of the new "UKCA" marking, which will replace the CE mark for UK conformity assessed goods. The guidance provides a degree of long-awaited certainty to businesses, after previous guidance was released in early February 2019 but withdrawn in January 2020.
- What products need to be UKCA marked?
- Do I have to remark all my products by January 2021?
- Can I sell UKCA marked products into the EU?
- Can I use a UKCA sticker or label?
- Any other UK specific requirements?
- What about existing stock?
- Should I start marking my products with the UKCA mark now?
- What does the future hold for UK and EU product compliance?
1. What products need to be UKCA marked?
"Most" products that are currently CE marked will need to be UKCA marked, as well as aerosols (in the EU aerosols are marked with the inverted epsilon "3" symbol).
2. Do I have to remark all my products by January 2021?
No. There will be a transition period of one year during which the CE mark will continue to be recognised, though the guidance encourages businesses to prepare for the new marking requirements well in advance of 1 January 2022. There is a series of exceptions to the transition period:
- If the EU requirements for products change, the CE mark is evidence of conformity to EU rules and will cease to be evidence of conformity to UK rules, in which case, according to the guidance, the UKCA mark would need to be used. This places a significant burden on UK manufacturers and importers to be aware of both UK and EU rules and divergence between the two. The UK's position is also, arguably, somewhat lacking in common sense – if the EU tightens its rules and a product is able to conform to the more stringent EU requirements, it must naturally comply to the less stringent UK requirements. (There is a clear statement that there are no plans for divergence of UK rules at this time, but should this happen, by logical extension, the UKCA mark would need to be used to indicate UK compliance instead of the CE mark.)
- Products must be UKCA marked if they are intended for the UK market, subject to third party conformity assessment (for example, some machinery and medical device categories), and where the equipment has been conformity assessed by a UK body which has not received the file from the previous EU body prior to 1 January 2021. Existing stock which is ready to place on the market is exempt.
- Certain groups of products are subject to specific rules, namely construction products, medical devices, rail interoperability equipment and civil explosives.
3. Can I sell UKCA marked products into the EU?
No. There is no indication from the EU that there will be any mutual recognition of conformity marks, pending any formal agreement being reached with the UK Government. Therefore manufacturers selling across the UK and EU markets will need to continue marking EU products with the CE mark.
The UK guidance indicates that both marks can be present on one product. The EU guidance for exporters to the UK does not mention dual-marking of products, but it is common for widely distributed products to be marked compliantly with multiple regimes and it would therefore be very surprising if the EU did not permit UKCA marks on already CE marked products.
4. Can I use a UKCA sticker or label?
Yes, for now. Until 1 January 2023, there is no requirement for the UKCA to be "permanent", unlike the CE mark. Therefore, a well affixed sticker or label on the product or accompanying document is an acceptable temporary solution for products which need to be UKCA marked sooner rather than later.
5. Any other UK specific requirements?
Most requirements are copied from the EU legislation and will be very familiar to existing manufacturers and importers, such as the need for record keeping. A UK-specific Declaration of Conformity will need to be prepared, which lists UK legislation and BS standards rather than EU legislation and EN standards.
Distributors and suppliers should review their compliance position to check whether they will become an EU importer or UK importer after 1 January; importers are subject to additional labelling and conformity assessment requirements.
6. What about existing stock?
Products already on the market as of 31 December 2020 do not need to be remarked. It is not, however, always easy to determine when product has been placed on the market. Just because product has left the manufacturer's facility, it is not necessarily "on the market"; conversely, product which has already been sold but which remains in the manufacturer's facility may be considered "on the market".
7. Should I start marking my products with the UKCA mark now?
The guidance stats that the UKCA marking can be used from 1 January 2021. Bearing in mind that the purpose of the mark is to attest conformity to UK product rules which do not come into force until 1 January 2021, there is no purpose to the mark until that time. The use of "other" marks is not prohibited provided they do not create confusion with the CE mark, but in our view, best practice would be to avoid UKCA marking until the mark acquires legal meaning. If a manufacturer did choose to place products on the market including the UKCA mark prior to 1 January 2021, the product must also be marked with the CE mark until that time, and the manufacturer should be prepared to defend any claim that the use of both marks could be confusing or misleading for consumers.
8. What does the future hold for UK and EU product compliance?
As suggested above, one of the most challenging aspects of Brexit for product manufacturers and importers is the possibility, or perhaps likelihood, of diverging product requirements which will mean that, at best, two conformity marks would be required to attest to compliance to two different regimes and, at worst, multiple product specifications for the two markets. While it is fair to say that the UK currently lacks capacity to refine its product requirements, the EU is pressing ahead with its Green Deal which will almost certainly result in the evolution of product requirements over the next few years. The EU is asking the UK to commit to regulatory alignment ("the level playing field") in this area, but so far the UK is opposed to this position and the latest headlines suggest that this position is fixed. A familiar conclusion when discussing Brexit: product manufacturers can do little other than wait and see.