On the 20th of April, the Government published its long-awaited Independent Review of the Construction Product Testing Regime which was announced in April 2021. The review was led by Paul Morrell OBE and Anneliese Day KC and its purpose was to map the system for testing, certifying, marketing, selling, re-testing, and recalling construction products, assess what does, or could, go wrong within this system, and recommend how the system should be strengthened. In this blog, BWF Technical Director Kevin Underwood takes a closer look at those recommendations made in connection with a general product safety requirement (GPSR) and explains what this could potentially mean for businesses.
The report questions whether UKCA and CE marking is the best way to regulate construction products particularly as the Construction Products Regulation (CPR) was introduced to regulate the trade of products within the European Single Market, a market of which Great Britain is no longer a member, although Northern Ireland has remained within the single market, and the CPR does not ensure that a product is safe.
Risk from use of Product
The Building Safety Act 2022 enables the Secretary of State to introduce regulations that prohibit the marketing or supply of construction products which are not safe products.
A construction product will be considered a “safe product” if, under normal or reasonably foreseeable conditions of use (including events such as a fire) the product does not present any risk to the health or safety of persons, or if it does, the risk is as low as it can be. The risks arising from the use of a product can be divided into two broad categories:
- intrinsic (or inherent) risk, i.e. that it might cause harm in handling, use or operation;
- risk of a functional failure, i.e. failing, for example, to prevent the spread of fire.
This requirement means that if, despite a construction product complying with all published standards, someone is harmed by, because of that product, then there is a potential legal liability that the harm was caused by a breach of the general duty that a construction product should be safe.
Product characteristics that are not currently regulated will become regulated even when there is not a standard for them. For example, there is currently no general requirement for testing for toxicity in the event of fire and there is no standard for what level of toxicity represents a risk, but the toxicity could make a product unsafe.
Whether a product is “safe” or not depends upon its subsequent use. This creates a problem for enforcement. Taking toxicity as an example again, there are very precise standards concerning toxicity in regulations for furniture, and these provide a measure against which products can both be tested and recognised as non-compliant. Without such standards, and without knowing the intended use of a construction product, there must be a question about the ability of Trading Standards to pick up a breach of the general safety requirement at any point prior to its incorporation into the building works – and therefore a question about the effectiveness of the measure.
A “general safety” issue in construction is most likely to be identified only in completed works, and quite possibly only when buildings are in use. Where that happens, it is likely to trigger the argument as to who is responsible. Any product manufacturer who is alleged to have manufactured a product that breaches the general duty of safety could respond that the product was inappropriately selected in the first place; and/or wrongly incorporated into the final design; and/or wrongly stored, handled or installed; or installed into a background that was inadequately prepared; and/or wrongly maintained or operated.
Guidance notes on the interpretation, operation and enforcement of the general safety requirement, similar to the fact sheets published by the Building Safety Regulator, are not yet available, and it is possible that they will demonstrate how any reservations concerning general product safety can be dispelled. Ultimately what is needed is a definition of the general safety requirement that is specific enough for manufacturers to be clear as to their obligations, and for Trading Standards Officers to implement an effective surveillance and enforcement regime.
As manufacturers have a defence of reasonable skill and care that acknowledges the implications of applying the GPSR requirement to products that are intended to work as part of an assembly or system, then that could incentivise a constructive dialogue about what would represent reasonable skill and care. It could, for example, encourage greater take-up of voluntary third-party certification schemes and it could also lead to the development of standards and guidance to support the general safety requirement – whether they relate to the preparation of risk assessments, the need for testing, horizontal standards relating to specific risks (such as toxicity), or more specific standards relating to individual products or tests.
Following the publication of the report the BWF is anticipating that the Government will publish a response to the report and its recommendations. This response might indicate what form of secondary legislation the Government will introduce in support of the Building Safety Act. The BWF will be keeping its members appraised of any developments.