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The devil is in the details

In this update on CE and UKCA marking, Richard Catt asks whether this is the worst Brexit headache?

THERE are quite a lot of challenges around now that weren’t in place even three years ago and not all are Brexit related by a long way. Our skills and labour shortage has been building for many years, the war in Ukraine has certainly not helped energy costs and the price of some raw materials such as timber. But a major problem I have come across that relates to our decision to leave the EU is CE marking. As far as I can tell it is one of the biggest Brexit hangovers or headaches for our sector that doesn’t seem to have an obvious short, medium, or long-term solution. Or at least not one that the government or the EU will support.

Without wishing to sound too dramatic it is a ticking bomb that needs defusing and could ultimately lead to product shortages. In case this is not on your radar, as we left the EU one of the consequences was that the mutual arrangements relating to CE marking had to be re-imagined. The CE mark on a product indicates that the manufacturer or importer of that product affirms its compliance with the relevant EU legislation and the product may be sold anywhere in the EU and the European Economic Area. It is a criminal offence to affix a CE mark to a product that is not compliant or offer it for sale. The new UK Conformity Assessed (UKCA) marking is a conformity mark that indicates conformity with the applicable requirements for products sold within Great Britain.

The UKCA marking became part of UK law at the end of the Brexit transition period, on 31 December 2020 and it has been mandatory since then, although, until 30 June 2025 (an extended deadline, which was previously 1 January 2022 then 31 December 2022), the CE mark will continue to be recognised in Great Britain for construction products until that mid-point in 2025. The reason the deadline for implementation of the legislation is being extended is because there are a number of issues that have not been addressed or resolved.

My understanding is that according to the current position and legislation, all products (post June 2025) will need to have both the CE mark (for the European market) and the UKCA marks (combined UKNI and CE mark for Northern Ireland) on packaging if they are to be sold in the UK and EU. In the short term, the CE mark will still be accepted in the UK until the deadline, but what happens after that is still in doubt. The devil is always in the detail and some of the top-level issues that have caused the introduction to be delayed a number of times include the fact that in the long-term testing will have to be carried out twice. Once for the CE mark and once for the UKCA mark by approved bodies for each territory. The CE marking certification will not automatically carry across and it will no longer be recognised in the UK after the grace period.

Ignoring the cost implications, there is a huge backlog of testing to be carried out and whilst the CE mark is currently all that is needed, as a manufacturing planning testing for the UKCA mark would superficially seem to be appropriate. Indeed, as the legislation was introduced the test houses started creating additional capacity, investing in buildings, equipment and recruitment. But with government announcing delays in implementing the legislation, many (manufacturers and testing houses) have understandably paused that process and are unsure how much to invest and when.

None of the parties involved in this situation is confident where we will end up and we are currently in an unusual situation where government has written legislation, aspects of which it does not intend to enforce (at this stage).

In the meantime, it is incredibly difficult for manufacturers to know what to do. Should they push forward with getting products tested for the UKCA mark for the UK market now? Or will there be a further extension? If they push forward can they find a test house that has capacity? What about practicalities of packaging? How do you decide what to do about design and implementation of new packaging? There are also legal considerations. Our key advisors and route to Government, the CPA, recommends manufacturers proceed as soon as possible to allow the UKCA mark to be affixed but are also working on all these complexities.

At the moment the Government will not make any further comment suggesting that industry should consider the guidance offered to date and decide its own timetable and actions from here on in, with a very strongly implied ongoing commitment to UKCA marking. If problems of capacity are not resolved and the deadline for implementation is extended again beyond June 2025 that just seems like kicking the can down the road again with even further damage to confidence and credibility.

Equally, the potential cost of a U turn or change in policy, let alone broad legal implications of some of the confusing messages, are equally concerning.

If we were starting from scratch and introducing conformity systems to guarantee safety, with a clean sheet of paper and no history, then we may have had a less painful journey ahead, but that isn’t the starting point. Like many acrimonious divorces, neither party seem to have any willingness to compromise. Ironically, what industry seems to have been calling for across this whole process is basically a return to mutual recognition and to me that seems the only solution. However, it is the EU which originally refused to discuss mutual recognition, not the UK, and that is probably not insignificant.

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