CEing the future of product compliance: UKCA Conformity Marking

"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).

No. There will be a transition period during which the CE mark will continue to be recognised; this lasts until 31 December 2024. It was originally envisaged that businesses would need to use the CA mark rather than the CE mark from 1 January 2022, but the Government extended that period by 1 year in August 2021 and then again by a further two years in November 2022. Therefore mandatory application will not begin until 1 January 2025, though the Government continues to encourage businesses to start using the CA mark as soon as possible. 

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 31 December 2024. 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.

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.

Yes, for now. There is no requirement for the UKCA to be "permanent", unlike the CE mark until the transition period (discussed below) has ended. Therefore, a well affixed sticker or label on the product or accompanying document is an acceptable temporary solution for most products which need to be UKCA marked sooner rather than later.

The Government is looking to extend this transitional period during which labelling can be affixed via a label (rather than permanently affixed); at the time of updating (December 2022), it is expected to be pushed out until 31 December 2027, meaning that businesses would have a further 4 years during which they can make use of this temporary "fix".

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.

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".

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 Trade and Cooperation Agreement does not commit the UK to regulatory alignment with EU standards ("the level playing field") in the area; while both the UK and the EU agree to base their product rules on international standards, there are exceptions and sufficient flexibility in this commitment that either party can and in all likelihood will at some point diverge from the existing position.