What effects will a ‘no deal’ Brexit have on UK Product Liability and Safety Legislation?

Earlier this year the Government published guidance on the possible changes a ‘no deal’ Brexit may have on the UK’s product safety laws.

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What effects will a ‘no deal’ Brexit have on UK Product Liability and Safety Legislation?

If we do leave the EU on a ‘no deal’ basis then the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 (the “Regulations”) will come into force. Although there will not be a radical change in product safety rules, the Regulations will amend several key pieces of related legislation including the Consumer Protection Act 1987 (“CPA”) and the General Product Safety Regulations 2005.

Individual products already available in the UK and EU prior to Brexit will still be able to be sold in the UK. Likewise, any new products which conform to EU requirements (including those which are CE marked) can also continue to be sold on the UK market after Brexit, although only for a limited time (that length of time is still to be agreed).

However, eventually the UKCA (UK Conformity Assessed) mark will replace the CE mark on products sold in the UK while the CE mark will continue to apply to products sold in Europe. Similarly, “UK Notified Bodies” will become “UK Approved Bodies” for the purpose of carrying out conformity assessments in the UK. In preparation for a “no deal” scenario, manufacturers should investigate how UK approval can be obtained for products to be sold on the UK market.

The changes brought in by the Regulations are actually fairly logical, especially as they’ve been brought about as a natural consequence of the UK’s departure from the EU (e.g. references to the ‘European (or ‘EEA’) market’ being substituted for references to the ‘UK market’).

However, some of the apparently straightforward changes will have consequences for businesses operating in the European market; a UK trader bringing goods into the UK from Europe may become an “importer” rather than simply acting as a “distributor”. For example, a UK supplier of German products to a UK retailer would currently be considered a distributor in the EU single market but post-Brexit (if the Regulations come into force), the UK supplier would be the importer. Importers carry greater responsibilities relating to product safety and product labelling than distributors, and they can also be liable for defective products under the CPA.

In addition, if a product defect is caused by compliance with a requirement of EU law, this will currently provide a manufacturer with a defence to a claim relating to that defect. But if a “no deal” Brexit occurs, this will only operate as a defence where the relevant EU law has been retained by the UK.

Where a defect arises in a product which poses a serious risk to consumers and leads to a product recall, the UK will no longer contribute to (or be able to rely upon) the RAPEX system (the EU rapid alert system for unsafe consumer products). Instead the Department for Business, Energy and Industrial Strategy will need to establish and operate a replacement database that provides information on product safety.

If you would like any advice on how changes to product safety legislation are likely to affect your business, or on how to ensure that your contracts properly allocate risk for non-compliance or defective products between the parties, please contact Tom Rook on 0114 252 7183 or tom.rook@keebles.com.

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