UK Government issues guidance on proposed "no deal" product safety law changes

Last week, the Government issued guidance on proposed changes to product safety laws if we exit the EU on a "no deal" basis. The guidance provides details of the regulations which are going to come into force if there is a "no deal" Brexit, namely the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019.

The Regulations introduce changes to product safety laws including the Consumer Protection Act ("CPA") and the General Product Safety Regulations 2005 ("GPSR"). The guidance only applies from Exit Day if we leave the EU without a deal, which given recent events is becoming increasingly uncertain and businesses need to continue to prepare for all possible scenarios including a "no deal" Brexit.

The product safety landscape will not change dramatically following the UK's exit from the EU. However, amendments are required to create a framework for a UK market to replace that of an EU market. Manufacturers whose goods are already lawfully placed on the EU (and UK) market prior to Brexit will continue to be able to circulate in the UK and those which meet EU requirements (including those CE marked or tested by an EU conformity assessment body) can stay on the UK market post Brexit but for a limited time only. Further legislation is to be determined to end this limited period.

The guidance can be found here.

Manufacturers, importers and distributors to the UK should read the guidance carefully and we highlight below some of the key points:

• Labelling – checking whether product labels needs to be amended; the UKCA marking is the new UK conformity marking replacing CE marking for products being placed in the UK market. See our March blog on this.
• Harmonised standards - checking how to obtain UK approvals for new products placed on the UK market; existing harmonised standards are going to become 'designated standards' to demonstrate conformity with UK requirements to maintain a single standards model between the UK and EU.
• Importer – checking if you are now considered an importer of goods into the UK market. Being an importer carries greater responsibilities for product safety and labelling than distributors, ie a UK supplier of a French product to a UK retailer would be considered a distributor in the EU single market; post-Brexit, the UK supplier will be an importer and potentially liable for defective products under the strict liability regime in the CPA.
• CPA – it is a defence if a defect is as a result of compliance with any requirement imposed by EU law. Post-Brexit, this will only serve as a defence where the relevant EU law has been retained by the UK.
• GPSR – the presumption of conformity to the general safety standard where a product conforms to EU voluntary standards will only apply to a voluntary national standard of the UK which the Department for Business Energy and Industrial Strategy (BEIS) considers appropriate and publishes its reference.
• Product Recalls – the UK will no longer benefit from the RapEx database (EU Rapid Exchange of information where a product safety risk is serious). BEIS will establish and operate a database with information on market surveillance and product safety, and no longer required to make notifications to the Commission.