Regulatory Outlook | Product regulation | July 2021

Current issues

Brexit brings new conformity markings for Great Britain and Northern Ireland

From 1 January 2022, any goods placed on the GB market which previously required a CE mark will need to carry the UKCA mark. The UKCA mark will not be recognised in the EU, and products will continue to require a CE mark for sale in the EU.

To regulate the flow of products across the Northern Ireland–EU border, goods placed on the Northern Irish market from Great Britain will require a UKNI mark alongside the CE mark where they have been conformity assessed by a UK-based Approved Body. Products which have been assessed by EU Notified Bodies do not require a UKNI mark to be placed on the Northern Irish market and can continue to use the CE marking only.

Manufacturers, along with platforms and importers, are encouraged to check that products have the relevant marks for each jurisdiction as soon as possible.

New marking requirements for single use plastic products from 3 July 2021

Under the Single Use Plastics Directive (SUPD), EU Member States must require that single use plastic cups for beverages bear a label of a dying turtle on its packaging from 3 July 2021. As part of the Northern Ireland protocol, the changes will take effect from 1 January 2022. England is not implementing the SUPD. Scotland and Wales are consulting on their own devolved legislation which aims to meet the SUPD requirements.

Due to Covid-19 delays, we are still waiting for the publication of the European Commission's finalised SUPD guidelines which should clarify the scope of "cups for beverages".

Alongside the new marking requirements, from 3 July 2021 Member States must take measures to inform consumers about the availability of reusable alternatives and the impact of littering, as well as introduce a ban on certain single use plastic products including expanded polystyrene food containers and cups, plastic stirrers, cotton bud sticks and plastic cutlery.

EU announces potential major changes to General Product Safety

Between June and October 2020, the European Commission carried out a consultation on consumer policy which included a review of the General Product Safety Directive (GPSD) to establish whether it is still fit for purpose.

The outcome of the review is a proposed General Product Safety Regulation, which will replace and modernise the GPSD. The proposed regulation contains sweeping reforms which are likely to change significantly the way that both modern and traditional products are produced, supplied and monitored across the EU. It will raise the requirements of safety and add sophistication in terms of compliance obligations for all non-food products and the businesses involved in manufacturing and supplying them to end users.

Osborne Clarke will be publishing more detailed analyses and summaries of the changes, but an initial article on the regulation is available here.

Home Office proposes a specific exemption for CBD products

In January 2021, the Home Office announced its proposal to create a specific exemption from the Misuse of Drugs Regulations 2001 for cannabidiol (CBD) products meeting certain criteria. The proposal states that a product will be exempt if it does not contain more than a specific threshold of cannabinoid chemicals THCV, THC and CBN. The suggestion is the threshold should be set somewhere between 0.01% and 0.001%.

The Home Office has asked the Advisory Council on the Misuse of Drugs (ACMD) to give recommendations as to which substances should be controlled and what the threshold should be. ACMD's call for evidence was concluded in April 2021 and we are now awaiting its recommendations.

If the proposal is enacted, CBD manufacturers who can demonstrate that the level of THC and other controlled substances are below the threshold will have increased certainty that their CBD products do not qualify as illegal drugs.

Government sets out policy on safety of consumer IoT devices

The government has published its response to last year's call for views on consumer connected products, revealing plans to legislate to regulate the security of consumer Internet of Things (IoT) devices.

The intended legislation will apply to any network-connectable devices and their associated services that are made available primarily to consumers, including smartphones, connected cameras, smart TVs and baby monitors.

Connected consumer products will be required to meet new safety requirements and designated standards, such as a ban on universal default passwords, before they can be placed on the UK market, and manufacturers will be required to publish a declaration of conformity.

UK Product Safety Review: call for evidence

Following Brexit, the Office for Product Safety and Standards has taken the opportunity to carry out a broad review of the UK's current product safety legislation to ensure that regulations are relevant to new and novel products and business models. The government ran a call for evidence between March and June 2021, gathering public and industry feedback on product safety laws and how the framework might be modernised.

The Product Safety Review focuses on the regulations applicable to the majority of consumer products, including electrical equipment, cosmetics, toys and gas appliances, as well as those that seek to protect users of machinery, lifts, equipment used in explosive atmospheres and pressure equipment. It also includes regulations, such as the General Product Safety Regulation 2005 and product-specific rules.

The questions explore product design, manufacture and placing on the market, new models of supply, new products and product lifecycles, enforcement considerations and a diverse and inclusive product safety framework.

Osborne Clarke responded to the call for evidence which closed on 17 June 2021 and we would be pleased to discuss our comments.

Packaging waste: Extended Producer Responsibility

The government recently consulted on proposed upcoming changes to its Extended Producer Responsibility scheme for packaging. The proposed changes would mean that packaging producers will pay the full cost of managing packaging once it becomes waste. The government's stated aim is "to encourage producers to use less packaging and use more recyclable materials, reducing the amount of hard to recycle packaging placed on the market".

The proposals include extending the obligations to online marketplaces and platforms who will need to account for "the amount of filled packaging that is sold on the UK market via their platforms/websites by businesses based outside the UK. Online marketplaces must pay fees to cover the costs of managing this packaging waste, as well as other scheme costs". Given the complexities for online marketplaces to account for the applicable packaging as they may never own it themselves, the government has proposed online marketplaces submit for approval to the regulator methodologies to compensate for any gaps. The consultation closed on 4 June 2021 but businesses should review the proposed changes and start to prepare for the government's target implementation date of 2023.

Further detail is provided in the government's consultation documents.

Dates for the diary

1 January 2022: Any goods placed on the GB market which previously required a CE mark will need to carry the UKCA mark.

1 January 2022: Single use plastic cups for beverages in Northern Ireland must bear a label of a dying turtle on the packaging.