[co-author: Eshana Subherwal]
Given developments last week, Brexit remains top of the agenda. While the UK government doesn't have the same level of "shut down" as the US government, clearly very considerable resources are currently being diverted to Brexit. Below is "what you need to know" about Brexit and product safety law changes potentially coming down the line. Are you ready for a new "UK marking", for example? It remains to be seen how these proposed changes will impact those in the product supply chain and more widely.
On 11 December 2018, a draft statutory instrument, the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 (the "SI"), was laid before Parliament to amend EU product laws and EU-derived domestic product laws that will be retained in UK law post-Brexit. The amendments aim to ensure that these laws operate effectively after the UK has withdrawn from the EU and the transitional period (if any) has ended.
Ten key changes are summarised below if the draft SI is approved by the UK Parliament:
1. "Importers": The definition of "importer" in the Consumer Protection Act (the "CPA") will refer to importers of products into the UK, rather than into the EU. This means that importers of products into other EU countries will no longer fall within the scope of the CPA.
2. "Producers": The definition of "producer" in the General Product Safety Regulations ("GPSR") will similarly be limited to individuals established in the UK, rather than in an EU member state.
3. "Placing on the market": The definitions of "placing on the market" and "making available on the market" in the Market Surveillance Regulation ("MSR") will refer only to the UK market.
4. "Authorised representatives": Under the MSR, "authorised representatives" will be required to be based in the UK if they are appointed post-Brexit, although they will be permitted to be based in any EEA state if they were mandated pre-Brexit and have a continuing mandate.
5. Meaning of "defect": The defence to a claim under the CPA that a product "defect" is a direct result of compliance with any UK enactment or EU obligation will be restricted to UK enactments and retained EU obligations only.
6. Standards: For the purpose of establishing a presumption of conformity under the GPSR, the Secretary of State will now be responsible for publishing UK standards, as standards published in the Official Journal of the EU will no longer be relevant. There is currently no indication of where and when these standards will be published.
7. Guidelines: The Secretary of State will also take over responsibility from the European Commission in publishing guidelines on product safety assessments in the UK.
8. New database: The GPSR will impose an obligation on the Secretary of State to establish and operate a database containing information relating to market surveillance and product safety so that, when required, enforcement authorities can notify the Secretary of State of any measures taken in relation to unsafe products.
9. No RAPEX: The provisions on notifying the European Commission through the RAPEX system will no longer apply.
10. New UK Marking: CE marking will be replaced by a new type of marking in the UK, which has been named "UK marking". The prescribed form of the new UK marking will be published on the gov.uk website by the Secretary of State prior to the day of Brexit.
What next?
This draft SI is subject to the "draft affirmative procedure", which means that it needs to be approved by both the House of Commons and the House of Lords. The government has not yet formally tabled a motion to approve it in the House of Lords, but it is anticipated that it will be approved by both Houses within the next six weeks.
The amendments will take effect from the moment that EU law ceases to apply in the UK, which will either be: (i) if there is a "no deal" scenario, on the day of Brexit (currently 29 March 2019); or (ii) if there is a "deal", after the transitional period has ended (most likely 31 December 2020).
[View source.]
