Legal spotlight - March 24

CONSTRUCTION PRODUCT regulation in the United Kingdom (UK) is based on European Union (EU) regulations which have been supplemented in the UK and retained when the UK left the EU, with some necessary amendments to ensure they remain workable. These regulations define a construction product as "any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof and the performance of which has an effect on the performance of the construction works with respect to the basic requirements for construction works".

Construction products therefore include products such as doors, windows, shutters and gates, membranes, thermal insulation products, chimneys and flues, sanitary appliances, fire alarms, flooring, fire retardant products, space heating appliances, power cables, glass, fixings and many more. 

CE marking is required for goods sold in the European Economic Area (EEA) where there is a relevant harmonised standard – this is an important limitation on the existing regulations. Many construction products are not subject to a designated standard or do not conform to a technical assessment and so fall outwith the existing regulatory framework. The government cannot require the withdrawal of such products from the market, even if they cannot be used safely (like aluminium composite material (ACM) cladding). 

Consequently, as part of its 2018 Building a Safer Future policy, the government stated it would address the regulatory regime for construction products so that all construction products marketed in the UK fall under one regulatory framework, with provisions allowing them to be withdrawn from the market if they present a risk. 

As part of this and its wider post Brexit review of regulation, UK ministers had planned to replace the European CE mark with a ‘UKCA’ mark. Use of the UKCA mark, which would demonstrate that products comply with product safety regulations in Great Britain, was originally due to become mandatory on 1 January 2022. 

However, this deadline has been pushed back several time, most recently in August 2023, when the government announced an “indefinite” delay to the deadline for ending the use of the CE mark on certain products on the market in Great Britain. The list of affected products was expanded following industry feedback in January 2024.

Designed to prevent a so-called “cliff-edge moment” at the end of this year, the Department for Business and Trade (DBT) said the intervention would ensure businesses no longer face uncertainty over the regulations which should help them focus on innovation and give them the flexibility to choose between the CE and UKCA marks. Enabling legislation will be brought forward. 

A new fast track process is also to be introduced allowing manufacturers to use the UKCA marking to demonstrate compliance with either UKCA or recognised EU conformity processes. Where products are covered by multiple regulations, a mixture of both UKCA and CE conformity assessment procedures can be used. New more flexible labelling requirements are also to be introduced including voluntary use of digital labelling.

However, this indefinite delay and associated guidance apply only to products covered by regulations “owned” by the DBT. These include items such as toys, pyrotechnics, measuring instruments, personal protective equipment (PPE), gas appliances, machinery and aerosols. It does not apply to construction products. 

Construction products are regulated separately by the Department for Levelling Up, Housing and Communities. This is not sitting well with industry stakeholders. Many of the arguments put forward to explain the latest indefinite delay – such as tackling red tape, cutting burdens for business, creating certainty for firms, helping to safeguard the competitiveness of manufacturers and aiding the UK as a destination for investment – are equally applicable to construction products. 

According to the government, for construction products, their “intention is to end recognition of the CE mark in Great Britain on 30 June 2025. Current rules, which allow for continued recognition of the CE mark, will remain in place until legislation is laid to end recognition of the CE mark.” 

The industry has repeatedly called for a uniform approach to CE marking across sectors. The government states that it has “listened to industry, and … are taking action to deliver”. Just not yet in relation to construction products it appears.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com