More than 5 years after the Grenfell Tower fire and following on from the Independent Review of Building Regulations and Fire Safety (the Hackitt Review) that led to the Building Safety Act 2022 (the "Act"), a set of new regulations for the marketing and supply of construction products is set to be introduced in Great Britain (GB).
A government fact sheet on the upcoming regulations states that the regulations will focus on the safety of construction products in an effort to make sure all construction products made available on the UK market fall under a regulatory regime and are safe.
No draft regulations are currently published, however Schedule 11 of the Building Safety Act provides 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 business can do to prepare for the upcoming changes.
What is a construction product?
Before we consider what the heightened safety standards construction products 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, there are, however, references to other construction related legislation and regulations in the Act which are a good indication of what may be considered a construction product under the upcoming regulations:
- The Construction Products Regulations 1991 defines a construction product as 'any product which is produced for incorporation in a permanent manner in works.' Works means 'construction works, including both buildings and civil engineering works.'
- Regulation (EU) No. 305/2011 (laying down harmonised conditions for the marketing of construction products) similarly defines 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 Works are defined as 'buildings and civil engineering works.'
Any materials which form part of buildings or civil engineering works are therefore likely to fall under the new safety regime. It is important to note that the new regulations are set 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 that the intention is to allow retrospective action, such that a company that previously sold a product in breach of regulations (but no longer does), may still be subject to civil and/or criminal sanctions in respect of breaches of the historic rules. The guidance notes that 'this may depend on the statute of limitations for the offence and other considerations, on a case-by-case basis'.
What are the new legislative proposals in relation to safety and construction products?
There are three key elements with regards to safety that are outlined in Schedule 11 to the Act:
1. General Safety Requirements
Similar to the requirements that apply to consumer products in the General Product Safety Regulations 2005, the new regulations will:
- 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 as low as it can be, compatible with using the product.
- impose other requirements for the purpose of securing that construction products which are not safe products are not marketed or supplied; and
- impose requirements in relation to the marketing or supply of construction products which are safe products.
2. Safety Critical Products
An element of the new regulations which is not covered in the General Product Safety Regulations is the concept of a 'safety critical product.' 'Safety-critical products' are defined in the Act as 'construction products which are included in a list contained in construction products regulations'.
The list has not yet been drawn up, however the Act has indicated that products will be included in the list if:
- any failure of the product would risk causing death or serious injury to any person, or
- the product is not one for which there are designated standards or standards which are designated standards for the purposes of Regulation (EU) No. 305/2011 (regulation laying down harmonised conditions for the marketing of construction products).
It is intended safety critical construction products will be identified with the assistance of industry and others as considered appropriate.
Amongst other requirements, manufacturers will be required to complete a declaration of performance for all safety critical products to be placed on the market, put in place factory production controls and follow the specified system of assessment and verification of constancy of performance (AVCP) to ensure that the claimed performance is consistently met. This will bring the regulation of these products in line with arrangements for 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 taken where necessary.
New powers will be created that allow for action to be taken where false statements or other misleading or inaccurate claims are made about the performance of a construction product, for example claims made in marketing, or advertising materials. Such powers will be exercised by local Trading Standards and the National Regulator for Construction Products, which will be part of the Office for Product Safety and Standards (OPSS).
The National Regulator for Construction Products will have the power to:
- carry out, or secure the carrying out 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 require a person to warn others of the risks attaching to a product;
- require the marking of a product in respect of the risks attaching 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 specified person);
- require the withdrawal of a product from the market;
- require the recall of a product from persons to whom it has been supplied;
- require a person to do or cease to do anything so as to end non-compliance or suspected non-compliance with construction product requirements.
The new regime will also put in place sanctions for non-compliance or suspected non-compliance with construction product requirements. This may include criminal offences, provisions for the prosecution of such criminal offences and provisions conferring powers to impose civil sanctions (including fines).
What does this mean for businesses?
A key question for businesses is who is responsible for ensuring compliance with the new safety requirements? If we take the General Product Safety Regulation as a guide, it is likely to be the person (or business) that first places the product on the market. If a product is manufactured outside of Great Britain and placed on the GB market by another entity, the entity which first placed the product on the market will be responsible for ensuring that the safety standards are met.
That is particularly important when sourcing goods from outside GB, in which case there is a significant risk that the first GB entity in the supply chain assumes all the liabilities of a manufacturer.
The practical consequence of these issues is that supply chain due diligence around construction products will assume substantially greater importance.
Another key question is how are manufacturers/distributors expected to make sure construction products are safe when there are so many ways in which they can be used? Manufacturers/distributors will need to assess the risks of their products according to their intended and likely uses, reduce those risks as far as possible and provide information about any remaining risks. This does not mean that every feasible use of the product will need to be considered.
Finally, those involved in the supply chain will have to review their insurance arrangements, particularly around any obligations relating to safety related incidents, the potential for recalls and the associated costs of rectification, in order to compliment supply chain due diligence to prevent incidents occurring.
The Addleshaw Goddard team will monitor developments and provide updates when there is more news.