Placing Manufactured Goods on the UK Market after Brexit

The UK Department for Business, Energy and Industrial Strategy has recently published new guidance for businesses placing manufactured goods on the UK market in the event of a no-deal Brexit.

We have reviewed this guidance and highlighted some practical considerations for businesses, including steps businesses may need to take in order to ensure that their placement of goods on the UK market (in the event of a no-deal Brexit) is in line with applicable rules and regulations.

The below note:

• assumes that the UK will be leaving the EU on 31 October 2019 without a deal; and
• does not apply to goods placed on the UK market before the 31 October 2019.

For your information, 'placing products on the market' (in the UK or EU) means when a product is first supplied for distribution, consumption or use on the market in the course of a commercial activity, whether in return for payment or free of charge. This can be either when a new manufactured product, or a product imported from a third country (new or used), is made available on the market for the first time. – If you are not sure if, how or when you may be 'placing products on the market', please let us know and we can assess the matter for you.

1. Your business sector

Please note that additional rules will apply if you’re placing goods on the UK market in the following sectors:

• chemicals;
• medicines and medical devices;
• vehicles;
• aerospace;
• rail interoperability; or
• construction.

If you would like any further information regarding the rules applicable to any of the above sectors, please let us know.

2. Conformity marking your goods

a) Using the UKCA (UK Conformity Assessed) marking

The UKCA marking is a new UK product marking that will be used for certain goods being placed on the UK market if there is a no-deal Brexit.

You will need to take action if:

• you are placing certain goods on the UK market after the UK leaves the EU – examples of such products include toys, electrical and electronic equipment and radio equipment. If you are concerned about whether your products are subject to regulation, please let us know and we may look into this for you;
• you are required to have your goods assessed by a conformity assessment body; or
• you are using a UK-based notified body now, or you plan to after Brexit.

If any of the above apply to your goods, you will need to use the new UKCA marking to indicate that your goods comply with UK regulations. Please note that the UKCA marking will not be recognised in the EU.

b) Using the CE marking

You will still be able to use the 'CE' marking for products being placed on the UK market if any of the following apply:

• you currently CE mark your goods on the basis of self-certification;
• any mandatory third-party conformity assessment was carried out by an EU-recognised notified body; or
• the certificate of conformity previously held by a UK body has been transferred to an EU-recognised notified body.

Please note that CE marking will continue to be accepted in the UK (after Brexit) for a limited time period. The government has stated that it will consult and give businesses notice before this period ends.

Further, products currently requiring a CE marking will continue to require a CE marking for sale in the EU.

3. Appointing an authorised or responsible person in the UK

If you are placing goods on the UK market, you can continue using any existing authorised representative based in the UK, EU, EEA or Switzerland and Turkey. On the other hand, if you need to appoint a new authorised representative to put your goods on the market after Brexit, the new authorised representative will need to be based in the UK.

Please note that if you are placing cosmetic goods on the UK market, you will need to have a responsible person based in the UK after Brexit, whether or not you have an existing authorised representative that is based in the EU, EEA, Switzerland or Turkey.

4. Checking whether your legal responsibilities are changing

The legal obligations for manufacturers will remain largely unchanged after Brexit.

However, UK distributors will need to assess whether they/their suppliers will become ‘importers’ once the UK leaves the EU. This will usually be the case if the distributor is the one bringing goods into the UK from the EU, EEA or Switzerland, and wants to put them on the UK market after Brexit.

If you are a distributor or supplier recognised as an ‘importer’, you will need to ensure that:

• goods are labelled with your company’s details, including your company’s name and a contact address (for 18 months after Brexit, these details can be provided on the accompanying documentation rather than on the goods themselves);
• the correct conformity assessment procedures have been carried out and that any goods imported carry the correct conformity markings (as explained above);
• the manufacturer has drawn up the correct technical documentation and complied with their labelling requirements;
• a copy of the declaration of conformity is maintained for a period of 10 years; and
• imported goods are not placed on the market if there is reason to believe they do not conform with the relevant essential requirements.

5. Checking requirements to export from non-EU/EEA countries

If you are exporting goods that need third-party conformity assessment from non-EU/EEA countries, you can meet your requirements for assessment in 3 ways:

1. You can have your goods assessed by a UK Approved Body, allowing them to be placed on the UK market. These goods will require the UKCA marking.

2. You can have your goods assessed by an EU or EEA notified body, so they can be placed on the EU market and the UK market for a limited time. These goods will require the CE marking.

3. You can have your goods assessed against EU requirements by using designated third-country conformity assessment bodies for a limited time. The bodies need to be based in countries that have concluded mutual recognition arrangements in relation to conformity assessment with the EU. The countries covered are:

• Australia
• New Zealand
• Canada
• USA
• Japan
• Switzerland
• Turkey
• South Korea
• Israel

6. Goods not covered by existing EU legislation

For some manufactured goods (such as furniture, clothing, bicycles, etc.), there is no EU-wide product specific legislation. These goods can be regulated at national level and are known as ‘non-harmonised goods’.

'Non-harmonised goods' can in some cases circulate freely around the EU/EEA under the ‘mutual recognition principle’. This means that EU countries must allow goods that are legally sold in another EU country to be sold in their own territory (for example, products made to comply with French national requirements can be lawfully marketed in other EU countries, even if such countries have different nation requirements for such products). This principle will no longer apply to the UK after the UK leaves the EU.

Accordingly, if you are importing non-harmonised manufactured goods into the UK, you will need to make sure they meet UK requirements – regardless of whether they were previously sold in another EU country.

Should you require any further advice or information on the guidance set out above, specifically in relation to how it may apply to your business and the products you manufacture, supply or sell, please do not hesitate to contact us.

Disclaimer: Nothing on this document constitutes legal advice or gives rise to a solicitor/client relationship. If you would like to obtain specialist legal advice, please let us know.

The contents of this document are for general information purposes only. Whilst we endeavour to ensure that the information on this document is correct, no warranty, express or implied, is given as to its accuracy and we do not accept any liability for error or omission.

We shall not be liable for any damage (including, without limitation, damage for loss of business or loss of profits) arising in contract, tort or otherwise from the use of, or inability to use, this document or any material contained in it, or from any action or decision taken as a result of using this document or any such material.

Some of the material on this document may have been prepared some time ago. Please contact us if you need a comprehensive and up-to-date statement of the relevant law.