UK: No Deal? No (Initial) Problem! Unless You Have Importer Syndrome

Last Updated: 28 March 2019
Article by Claire Temple, Carol Roberts and Julia Maskell

This week, the Office for Product Safety and Standards (OPSS) published guidance on product safety in the event of a No Deal Brexit. This guidance builds on the technical notices we have previously written about (see here, here and here). It offers some general advice to businesses as well as setting out the changes that will be made to specific legislation from 'Exit Day'.

The big picture

Whilst the guidance does not represent a significant departure from the existing technical notices, there are some key points for businesses to be aware of:

  • No change to the safety and technical requirements applicable to products sold in the UK.

As expected, the government does not plan to alter the core product safety requirements, with the goal of ensuring that trade between the UK and the EU is as frictionless as possible. The main legislative changes will simply amend existing UK legal provisions that would not work without changes being made. For example, the General Product Safety Regulations 2005 will be amended to require BEIS to establish and operate a database to replace the current EU Rapid Exchange (Safety Gate and formerly known as RAPEX) database.

  • Lawfully CE marked products will continue to be accepted for a limited time period.

Despite the introduction of the UKCA mark (see our post here), businesses will, initially, be able to choose whether to mark their products with either the CE mark or the UKCA mark to demonstrate conformity. Although the guidance is clear that this will be for a limited time period, its length remains to be determined "following future consultation".

  • The UK will publish a list of designated standards, which will replace the EU harmonised standards.

BEIS will designate standards by publishing a reference to them. The guidance envisages that these standards will be those adopted by any of the European Committee for Standardisation (CEN), the European Committee for Electrotechnical Standardisation (Cenelec), the European Telecommunications Standards Institute (ETSI) or the British Standards Institution (BSI).

From distributor to importer – are you caught?

In addition, and of particular note is that some businesses that were previously distributors will now take on the role of importer, and will need to comply with the enhanced obligations this role brings.

From "Exit Day" these new importers will need to comply with all the responsibilities of an importer, which include additional requirements to monitor product compliance and retain compliance documentation. For the first 18 months of a No Deal Brexit, new importers will be permitted to display their name and address on the packaging of a product, rather than the product itself. Thereafter, these importers will be required to ensure that their name and address appear on the product itself.

Practically speaking, that could mean some urgent additional labelling on products not yet on the UK market, but already manufactured, to ensure full compliance.

Cosmetics specific

EU law requires that cosmetic products have a Responsible Person in the EU, which entails a number of obligations. For the first two years of a No Deal Brexit, the UK will recognise an EU based Responsible Person for cosmetics placed on the UK market. However, after two years, cosmetics will need a Responsible Person based in the UK.

In a No Deal Brexit, the Responsible Person will need to register their products placed on the UK market with the UK Government cosmetic product registration service (which replaces the Cosmetic Product Notification Portal (CPNP) in the UK). Where cosmetic products are registered with CPNP and placed on the UK market within 90 days of "Exit Day", the Responsible Person will need to submit details of the products via the UK registration service. For products not previously placed on the EU market or placed on the UK market more than 90 days after "Exit Day", additional information will be required.

There will also be specific provisions for cosmetic products containing nanomaterials.

These clarifications provide some desirable breathing space for those selling cosmetics products in the UK.

Comment

Whilst a No Deal Brexit will not be a cliff edge for product safety requirements, businesses need to be aware of where there are changes and be prepared for any increase in their obligations. This will primarily affect those businesses previously considered distributors in the UK, who would be subject to the enhanced requirements placed on importers. In particular, these "new importers" will need to ensure that their name and address is displayed on a product's packaging from Exit Day, potentially only just over two weeks from now (13 April) as the uncertainty around the UK's position continues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions