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CEing the future of product compliance: UKCA Conformity Marking

Overview

Update September 2021: This article has been updated, primarily to reflect revised rules on timing of mandatory application of the CA Mark, released in August 2021.


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a degree of long-awaited certainty to businesses, after previous guidance was released in early February 2019 but withdrawn in January 2020.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?

"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).

Do I have to remark all my products by January 2021?

No. There will be a transition period of two years during which the CE mark will continue to be recognised.  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. Therefore mandatory application will not begin until 1 January 2023, 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 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.
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.

Can I use a UKCA sticker or label?

Yes, for now. Until 31 December 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 most products which need to be UKCA marked sooner rather than later.

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.

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".

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 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.

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