Product and food safety rules in a 'no deal' Brexit

Out-Law Guide | 17 Nov 2020 | 11:21 am | 15 min. read

A 'no deal' Brexit would have immediate and longer term impacts on the UK's product and food safety regimes.

Simon Tingle of Pinsent Masons, the law firm behind Out-Law, has taken a look at what businesses might expect in that scenario.

Consumer and industrial products - 1 January 2021

Law
UK market EU market Northern Ireland 

Directly effective EU law (EU product regulations) will be 'rolled over' into UK law and will continue to apply from 1 January 2021, with minor variations through, for example, The Product Safety and Metrology (Amendment) (EU Exit) Regulations 2020, and The Construction Products (Amendment etc.) (EU Exit) Regulations 2020. Where UK law had enacted EU provisions into UK law directly these will remain applicable as before except as adjusted by such legislation.

 

UK legislation may diverge from 1 January 2021. 

EU law will continue to apply but this will not apply in the UK leading to potential regulatory divergence.  Northern Ireland will be treated as an EU member state and therefore supply from Northern Ireland into France, for example, will not be considered importing into the EU. EU law will continue to apply in Northern Ireland.  
The General Product Safety Regulations / Directive
UK market  EU market UK and EU market
For the General Product Safety Regulations 2005 (UK) there must be a UK-based producer (manufacturer or importer) where supply/sales are not made directly to consumers/end users. This producer must be named on the product/packaging.  For products covered by the General Product Safety Directive, there must be an EU based producer where supply/sales are not made directly to consumers/end users. This producer must be named on the product/packaging. 

For products covered by both the UK regulations and the EU directive, the products can be dual labelled with the name of the UK and EU based producer.

 
New approach - CE marked products, product details and labelling
UK market  EU market UK and EU market

Where there is an EU-based manufacturer, then a UK based importer or responsible person is required in order to access the UK market where sales are not made directly to consumers/end users.

Where the importer route is used, the EU, or other foreign manufacturer and the UK importer need to display their name, trade name/mark and address - together, 'details' - on the product or the packaging.

For placement on the market in Great Britain, until 31 December 2022, these details can be provided on accompanying documentation where the products are imported from the European Economic Area (EEA) or Switzerland.

This grace period is not applicable to construction products, medical devices, interoperability of the rail system and transportable pressure equipment. For example, for construction products, the requirements will take effect from 1 January 2021.

Where there is a UK based manufacturer, then an EU or Northern Ireland based importer or responsible person is required to access the EU market where sales are not made directly to consumers/end users.

Where the importer route is used, both the UK manufacturer and EU/NI importer need to display their name, trade name/mark and address on the product or packaging.

Where the products are destined for both the UK and EU market, the products can be dual labelled - with the details of both the EU manufacturer and the UK importer or vice versa.

It is possible to provide the details of the UK importer on accompanying information during the period until 31 December 2023. This grace period is not presently available for the EU market. See UK market section for grace periods there.

Conformity assessment bodies
UK market  EU market UK and EU market

From 1 January 2021, any mandatory third-party conformity assessment for the UK market will need to be carried out by a UK-recognised conformity assessment body. Only some product types are subject to this form of assessment.

EU conformity assessment bodies will no longer be able to carry out mandatory conformity assessment unless this is otherwise agreed in negotiations.

For transitional provisions see marking below.

From 1 January 2021, any mandatory third-party conformity assessment for the EU market will need to be carried out by an EU-recognised conformity assessment body.

UK conformity assessment bodies will no longer be able to carry out mandatory conformity assessment for products being placed on the EU market unless agreed in negotiations. Absent a deal, existing assessments by UK bodies will be invalid for EU compliance purposes. 

From 1 January 2021, conformity assessment will need to be carried out by both UK and EU recognised bodies. 
Declarations of conformity and performance
UK market  EU market UK and EU market
Rules around UK declarations of conformity and declarations of performance (DOC/DOP) will largely replicate EU requirements, but in the UK these must reference UK legislation or standards.

DOC/DOP must reference EU legislation or standards.

 

DOCs/DOPs must reference UK and EU legislation and standards.

 
Marking
 GB market EU market UK and EU market 

A UK conformity assessment (UKCA) mark will be required immediately after 1 January 2021 if all of the following apply:

  • The product is for the GB market;
  • The product is covered by legislation requiring UKCA marking;
  • The product requires mandatory third-party conformity assessment; and
  • The conformity assessment has been carried out by a UK conformity assessment body.

The UKCA marking rules do not apply to "existing stock". This means that pre-existing stock fully manufactured before 31 December 2020 and already conformity marked can continue to use the CE Mark.

 

You will be able to use the CE marking until 31 December 2021 if any of the following apply:

  • you currently apply the CE marking to your good on the basis of self-declaration;
  • any mandatory third-party conformity assessment was carried out by an EU-recognised notified body, including a body in a country with which the EU has a relevant mutual recognition agreement;
  • the certificate of conformity previously held by a UK approved body has been transferred to an EU-recognised notified body.

Until 1 January 2023 it is possible to place UKCA mark on a label affixed to the product/accompanying document as opposed to the product itself

CE marking will be required for placement on the EU market. If a conformity assessment is required by an approved assessment body this must be an EU approved body. 

A UKCA and CE mark can be applied where product complies with and meets both UK and EU requirements or standards.

 

For Northern Ireland, the UK (NI) or CE mark must be used. 

The food safety regime

Law
UK EU Northern Ireland
For now, EU food law has been rolled over into national UK law as "retained EU law" with certain amendments. EU food law and labelling rules continue to apply.  EU food law and labelling rules will apply in Northern Ireland.
Labelling
UK market  EU market UK and EU market

Companies require a UK food business operator (FBO) or UK importer, and the name and address of this UK entity must be placed on the food label.

 

You can continue to use an EU, GB or NI address for the FBO on pre-packaged food or caseins sold in GB until 30 September 2022.

The EU FBO must be based in an EU member state or Northern Ireland.

 

After 1 January 2021, for food products placed on EU market, the name and address of a UK FBO alone is no longer acceptable on the label.

 

Dual-labels featuring details of both UK and EU FBOs would be acceptable, provided it is clear.
Logos and emblems
GB products  EU or NI products UK and EU

Must not use EU organic logo, subject to agreement in the alternative in a trade deal. 

 

Must not use EU emblem unless authorised to do so.

 

Must use UK health and identification marks.

 

Where country of origin is GB, must say UK origin.

UK products will no longer be of ‘EU origin’.

 

Existing rules on the inclusion of the EU organic logo; EU emblem and EU health and identification marks will apply. 

 
UK and EU FBOs must be named on label. See other columns for other information.