More than 5 years after the Grenfell Tower fire and following the Independent Review of Building and Fire Safety Regulations (the Hackitt Review) which led to the Building Safety Act 2022 (the “Law“), a set of new regulations for the marketing and supply of construction products is set to be introduced in Britain (GB).
A government factsheet on the forthcoming regulations says the regulations will focus on construction product safety with the aim of ensuring that all construction products made available on the UK market fall under a regime regulatory and are safe.
No draft regulations are currently published, but Schedule 11 of the Building Safety Act gives a good indication of what the new regulations are likely to include.
We explore some of the key elements of the regulatory proposals and outline what businesses can do to prepare for the upcoming changes.
What is a construction product?
Before looking at what construction products with increased safety standards may contain, it is first important to understand what is likely to be affected by the new regulations, i.e. what will be defined as a construction product.
A construction product is not defined in the Act, however there are references to other construction related laws and regulations in the Act which are a good indication of what may be considered a construction product in under future regulations:
- The Construction Products Regulations 1991 define a construction product as “any product manufactured for permanent incorporation into works.‘Works means’construction works, including buildings and civil engineering works.‘
- Regulation (EU) No 305/2011 (laying down harmonized conditions for the marketing of construction products) similarly defines a construction product as “any product or kit which is manufactured and placed on the market for permanent incorporation into construction works or parts thereof and the performance of which affects the performance of the construction works against baseline requirements for construction works.‘Construction work is defined as ‘buildings and civil engineering works.‘
All materials used in the construction of buildings or civil engineering works are therefore likely to come under the new safety regime. It is important to note that the new regulations aim to cover all products, including those already on the market and future products that are not yet available for sale. Guidance issued by the government suggests the intention is to allow for retroactive action, so that a company that previously sold a product in breach of regulations (but no longer does so), may still be subject to civil and/or criminal penalties for violations of historical rules. The guidance notes that “It may depend on the statute of limitations of the infringement and other considerations, on a case-by-case basis.”
What are the new legislative proposals regarding safety and construction products?
Three key security elements are described in Schedule 11 of the Act:
1. General security requirements
Similar to the requirements that apply to consumer products in the General Product Safety Regulations 2005, the new regulations:
- prohibit the marketing or supply of construction products which are not considered “safe products”. A construction product is a “safe product” if, under normal or foreseeable conditions of use, the product does not present any risk to the health and safety of persons or, if it does, the risk is the lowest. possible, compatible with the use of the product.
- impose further requirements to ensure that construction products which are not safe products are not marketed or supplied; and
- impose requirements on the marketing or supply of safe construction products.
2. Safety Critical Products
One element of the new regulations that is not covered by the General Product Safety Regulations is the concept of “safety-critical product”. “Safety-critical products” are defined in the law as “construction products appearing on a list contained in the construction products regulation’.
The list has not yet been established, but the law has indicated that products will be included in the list if:
- failure of the product could result in death or serious injury to any person, or
- the product is not a product for which there are designated standards or standards which are designated standards for the purposes of Regulation (EU) No 305/2011 (Regulation laying down harmonized conditions for the marketing of construction products).
It is expected that safety critical construction products will be identified with the assistance of industry and others deemed appropriate.
Among other requirements, manufacturers will be required to complete a declaration of performance for all safety-critical products to be placed on the market, to put in place factory production controls and to follow the specified system of evaluation and verification. constancy of performance (AVCP) to ensure that the claimed performance is always achieved. This will align the regulation of these products with the provisions applicable to products covered by the existing regulatory framework.
The market surveillance and enforcement regime will be strengthened so that compliance can be monitored and enforcement action can be taken if necessary.
New powers will be created to enable action to be taken in the event of false or other misleading or inaccurate statements regarding the performance of a construction product, for example statements made in marketing or publicity materials. These powers will be exercised by the local trading standards and national building products regulator, which will be part of the Office for Product Safety and Standards (OPSS).
The National Construction Products Regulator will have the power to:
- perform or ensure the performance of market surveillance and test purchases;
- enter, inspect and search premises and seize and retain products or evidence of non-compliance with construction product requirements;
- require the retention and provision of information;
- by notice requiring a person to warn others of the risks associated with a product;
- require the marking of a product with regard to the risks attached to it;
- suspend for a specified period or prohibit the marketing or supply of a product (or suspend or prohibit the marketing and supply of the product without the consent of a specific person);
- require the withdrawal of a product from the market;
- require the recall of a product from those to whom it was supplied;
- require a person to do or stop doing anything to end the non-conformity or suspected non-conformity with construction product requirements.
The new regime will also introduce penalties for non-compliance or suspected non-compliance with construction product requirements. These may include criminal offences, provisions relating to the prosecution of such criminal offences, and provisions conferring the power to impose civil penalties (including fines).
What does this mean for businesses?
A key question for companies is who is responsible for ensuring compliance with new security requirements? If we take the General Product Safety Regulations as a guide, it is likely to be the person (or company) who puts the product on the market first. If a product is manufactured outside Britain and placed on the UK market by another entity, the entity that first placed the product on the market will be responsible for ensuring that safety standards are met.
This is particularly important when sourcing goods from outside Britain, in which case there is a significant risk that the first UK entity in the supply chain will take on all the responsibilities of a manufacturer.
The practical consequence of these issues is that supply chain due diligence on construction products will take on much greater importance.
Another key question is how are manufacturers/distributors supposed to ensure construction products are safe when there are so many ways to use them? Manufacturers/distributors will need to assess the risks of their products based on their intended and likely uses, reduce those risks where possible, and provide information on the remaining risks. This does not mean that all possible uses of the product should be considered.
Finally, those involved in the supply chain will need to review their insurance arrangements, particularly with respect to security incident obligations, the potential for recalls and associated rectification costs, in order to complete the supply chain due diligence to prevent incidents.