Bitesize Brexit 2.0. Tips on what to do now: regulatory issues

When the UK leaves the Single Market, the regulatory rules that businesses need to apply will change. This is what you need to be thinking about now. 

The free movement of goods and making sure such goods are safe and stick to proper standards is a key element of the EU’s Single Market. With the UK leaving this market at 11pm on 31 December 2020, the regulatory regime will no longer be the same. That goods will still need to be safe is a given, but the standards that apply—and the relevant regulation—are likely to change in many areas.

In this series of bite-size ‘Brexit countdown’ articles, we focus on the commercial implications of ‘Brexit 2.0’ in certain key areas and set out a high-level overview of the sort of things you should be thinking about with your teams and customers, and what you should be doing to get yourself Brexit-ready.

Last time, we looked at data. In this article we look at regulatory issues.

What sorts of things should you typically be thinking about?

Consider these key matters in particular:

• have you considered the impact of any changes (including likely changes) to importer and exporter obligations? How might this impact on your supply chains and who is responsible for various obligations? For UK businesses which import food products directly, check out our article UK food product importers consumer protection duties post-Brexit
• are you aware of your obligations and responsibilities if you are a distributor importing goods (including criminal liability and the need for enhanced due diligence)? If you place those goods on the market in the UK, you will become an importer, even if your historic position has been a distributor and take on additional responsibilities. Check out our article Don’t let confusion cost your business – product safety changes post-Brexit
• have you considered the impact of any parallel regulation where the regulatory regimes in the EU and UK diverge? This may mean that UK businesses selling to the EU need to comply with different regulatory regimes and conformity assessments (and vice versa)
• are you aware of any changes (including likely changes) to the mutual recognition of goods lawfully marketed in another EU member state?
• as mandatory third-party conformity assessments in respect of products to be placed on the EU market must be carried out by an EU-recognised notified body, if you are a UK exporter to the EU, have you checked what steps your UK notified body is taking so that they can continue exporting to the EU without looking for a new EU notified body?
• do you need to appoint responsible persons (also known as authorised representatives or nominated persons) to carry out certain tasks as defined in EU product legislation?
• have you considered product safety standards, product liability and product marking (who and what needs to be on the label)?
• are you aware of the new regulatory borders, noting Great Britain (ie, excluding Northern Ireland) will apply customs checks on the Irish sea as opposed to on the island of Ireland?
• have you considered what the reporting and compliance of goods and services requirements are and who is responsible for these requirements?
• certain types of product may be subject to additional regulatory checks when arriving at the EU border for example food, feed, animals and animal products, and plant and plant products. Do you know what these are and what they are likely to be?

Of course, every business will need to consider its own particular circumstances based on factors such as, in particular:

• its location
• its supply chain for goods into, out of and around the UK (e.g. NI)
• the nature of its goods and services
• the business, economic and regulatory environment in which it operates
• the location of its key customers and suppliers, and
• the make-up of its workforce.

There is no one-size-fits-all approach to the analysis you need to do but thinking about the commercial aspects above can help you decide what legal changes (if any) are necessary now and in the months to come.

At Shoosmiths, we have stayed close to Brexit developments. As always, we welcome any thoughts or comments from you and are ready to help you prepare for Brexit.

We are also producing briefings across all specialisms to keep you informed of legal changes anticipated in light of Brexit.

If you have any queries, do get in touch.