New Brexit guidance: use of the UKCA mark from 1 January 2021

The UK Government published a suite of Brexit-related guidance documents on Tuesday, 1 September 2020, providing businesses with long-awaited information on some aspects of product compliance applicable from 1 January 2021. The UK Government has also published its 'United Kingdom Internal Market Bill' and for now it is not clear whether the provisions setting out the principle for mutual recognition of goods sold in any part of the UK and those relating to the application of Northern Ireland Protocol will impact any of this guidance.

In a series of short newsflashes, we will summarise key messages for product companies resulting from the latest guidance. This first newsflash covers what you need to know about the use of the new UKCA mark.

Which countries does the new UKCA mark cover?

  • The new guidance document confirms that the UK Conformity Assessed (UKCA) product marking regime must be used for products placed on the market in Great Britain i.e. England, Scotland and Wales.
  • Products placed on the market in Northern Ireland can still follow EU rules and apply the CE mark unless they were manufactured specifically to new UK rules or a mandatory third-party conformity assessment was carried out by a UK notified body, in which case a new Northern Ireland specific UK(NI) mark must apply (no rules or detailed guidance on the specific UK(NI) mark have been published to date).

When must manufacturers use the new UKCA mark?

Companies can continue to use the CE mark until 31 December 2021 as long as:

  • EU and UK requirements remain the same and
  • Any of the following apply:
    • the company currently applies the CE mark to their products on the basis of self-declaration; or
    • 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.

BUT: the UKCA mark must be used from 1 January 2021 if all of the following apply:

  • the product is covered by legislation which requires the UKCA mark; and
  • the product requires mandatory third-party conformity assessment; and
  • conformity assessment has been carried out by a UK conformity assessment body and the conformity assessment files haven't been transferred from your UK body to an EU-recognised body before 1 January 2021.

Additional exemption for "existing stock"

Products "fully manufactured and ready to place on the market" before 1 January 2021, compliant under EU rules and CE marked, can still be sold in Great Britain from 1 January 2021 (even if covered by a UK-issued certificate of conformity) provided that the GB and EU rules remain the same.

What products are covered?

  • Key product categories to be covered by the UKCA marking regime and discussed in this newsflash include toys, radio equipment, personal protective equipment, machinery, eco-design, and aerosols. Some products (such as construction products and medical devices) will be covered by the UKCA mark but will be subject to special rules. For a full list of product categories covered, see the new guidance document.

How will the UKCA marking regime work in practice?

  • There are some transitional provisions. Until 1 January 2023 in most cases manufacturers can choose to apply the UKCA mark either to the product itself or its packaging. In some cases the UKCA mark may be placed in the product manual/supporting literature, as permitted by specific rules relating to the product category.
  • From 1 January 2023, the UKCA mark must be "permanently attached" i.e. affixed directly to the product.
  • The manufacturer (or its authorised representative) must ensure compliance with the relevant UK legislation before by applying the UKCA mark to the product, and can only do so where a legal requirement exists.
  • They must also draw up a UK Declaration of Conformity, which should list the relevant UK (rather than EU) legislation and UK designated standards (which will use the prefix 'BS' to indicate that the standards have been adopted by the UK's national standards body).

What's coming next?

The Hogan Lovells Global Products Law team is actively monitoring Brexit-related product compliance developments and would be delighted to discuss how we can best support your business. Further newsflashes in this mini-series will address the recently published Brexit guidance on the following key areas: status of conformity assessment bodies; placing manufactured goods on the EU and UK markets; chemicals regulation (REACH) in the UK; and medical devices regulation.

Watch this space for our next Brexit updates!

Co-author: Associate, Tania Buckthorp

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