Transitioning from CE to UKCA - what do FMCG manufacturers need to know?

UK consumers have become well-accustomed over the years to the CE (or ‘Conformité Européenne’) mark being displayed on a wide variety of manufactured goods, from medical devices to children’s toys.

However, from 1 January 2021, following the end of the transition period for the UK’s exit from the EU, the UK Conformity Assessed (or UKCA) mark will be introduced for manufactured goods placed on the market in Great Britain, replacing the current CE marking regime. Like the CE mark, the UKCA mark will confirm that the product meets certain health, safety and environmental regulations and standards. 

In most cases, businesses will benefit from a yearlong grace period to adjust to this new regime. The essential requirements, the process for conformity assessment and the standards for conformity assessment of the new UKCA regime will, at least initially, be largely the same as the CE marking regime.

There will be a separate regime for Northern Ireland, the guidance for which can be found here. 

Which goods need to be UKCA marked?

Most goods that previously required a CE mark will now require a UKCA mark. The UKCA mark will only be required for those goods that are being placed on the market in Great Britain i.e. England, Wales or Scotland. 

How long do I have to change my product markings and labels?

The UK Government is encouraging manufacturers to use UKCA marking as soon as possible after 1 January 2021. However there is a one year transition period for most products during which you can continue to use the CE mark. This is subject to a few exceptions [1], and there are specific rules for some specific products, such as medical devices. 

After 31 December 2021, the CE mark will no longer be recognised in Great Britain and all products placed on the GB market will need to bear the UKCA mark.  

What happens to existing stock?

If your product was fully manufactured, conformity marked and ready to place on the market before 1 January 2021, you can continue to place it on the GB market with a CE marking until 31 December 2021. 

In what other circumstances can I continue to use the CE mark after 1 January 2021?

You must be able to satisfy the following criteria to continue using the CE mark until 31 December 2021:

• You currently apply the CE marking to your goods 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

In addition, you can only continue to use the CE mark as long as the UK and EU requirements remain the same. The government guidance says that there are no UK plans to diverge at this time, but if there are any changes in the EU rules before 1 January 2022, you may need to make the transition to UKCA marking sooner. 

Can I use the UKCA mark to place goods on the market in the EU?

No, the UKCA mark will not be recognised within the EU which means that if you want to sell goods in the EU, they must continue to bear the CE mark. However, goods can carry both the CE and UKCA markings as long as they are fully compliant with both UK and EU regulations.

The UKCA mark will also not be recognised in Northern Ireland. To find out more about placing goods on the market in Northern Ireland from Great Britain from 1 January 2021, see the Office for Product Safety and Standard’s guidance here. 

What does this mean for UK retailers?

In the post-Brexit era, UK retailers are likely to be under the same obligations in relation to product markings as they are currently, such as verifying that the goods they are placing on the market bear the necessary UKCA marking (and/or CE marking up to 31 December 2021), ceasing selling products if it is suspected that the requirements of the regulations have not been met, and notifying specified parties if that is the case. 

In addition, draft legislation has been proposed for certain safety regulations providing that CE-marked goods placed on the GB market up to 31 December 2021 may continue to be made available following that date, suggesting that as long as CE-marked goods are lawfully first placed on the GB market before 31 December 2021, they can continue to be sold through at retail level after this date. This legislation is yet to be enacted, and we expect that the government will publish further guidance on this point in the future. 

Where can I find further guidance about the UKCA mark?

You can find the government’s guidance on UKCA marking here. 

[1] You will need to use the new UKCA marking immediately after 1 January 2021 if all of the following apply. Your product:

• is covered by legislation which requires the UKCA marking
• requires mandatory third-party conformity assessment
• conformity assessment has been carried out by a UK conformity assessment body and you haven’t transferred your conformity assessment files from your UK body to an EU recognised body before 1 January 2021.

Please note that this does not apply to existing stock, as outlined above. 

If you have any specific queries or concerns please feel free to contact Duncan Reed, Partner, or Richard Collie, Associate, in TLT’s Regulatory team to discuss.

Contributor: Molly Efford