Construction products – which are generally understood to refer to "any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof"[1] – are a pivotal part of the housing and infrastructure supply chain. They make up around 13% of the UK's entire manufacturing base by turnover,[2] and it has been estimated that as many as 20,000 firms import construction products into the UK.[3]

Their continuous supply is critical to delivering on the Government's housebuilding targets of 1.5 million homes over the next five years and wider infrastructure ambitions.

Evidence to the Grenfell Tower Inquiry, and the final Grenfell Phase 2 Report which we commented on in our previous insights (Grenfell inquiry – Phase 2 report published and The Grenfell phase 2 report: Implications for the construction industry?) revealed the scale of concern about the construction industry – and construction products which are vital to all our buildings and infrastructure – and that the system which oversees them remains inadequate.

So how are construction products currently regulated, and what changes should the industry be expecting in the near future? We examine below some of the key points and developments to be aware of.

Construction product regulation – key points to be aware of

Current construction product regulation in the UK

Since 2021, the UK regulator for construction products (as well as most consumer goods) has been the Office for Product Safety and Standards (OPSS).

The current regulatory framework in the UK is established by the Construction Products Regulations 2013 (CPR 2013), which were amended in 2022 by the Construction Products (Amendment) Regulations 2022 to give the OPSS the required enforcement powers.

Until recently, the construction product regulatory landscape relied on a pan European approach. There have been recent developments in Europe with regard to harmonising the marketing of construction products and while the new EU Construction Products Regulation will of course no longer directly apply, it will no doubt have an impact on UK manufacturing and analysis of potential alignment / divergence will be carried out.

Some of the weakness of the current regulatory framework and the need for reform were detailed in the 2023 Independent Review of the Construction Product Testing Regime led by Paul Morrell OBE and Anneliese Day KC (the Independent Review). This noted, in particular, that:

  • Construction products regulation in the UK currently only applies to products for which there are designated standards – this leaves "products for which there is no designated standard (which, by popular understanding, is about two-thirds of all products on the market" currently unregulated. This will be remedied by the "general safety requirement" that is to be introduced following the reform brought about by the Building Safety Act 2022 – although as noted further below this change has not yet been brought into force.
  • The system is complex with multiple steps and routes to conformity assessment that must be followed before a manufacturer can make a 'Declaration of Performance', mark the product (as described below) and place it on the market. This means that " few people properly understand it, and there is a concerning disconnect between those involved in the assessment process and those who design and construct buildings."

Regulatory reform – the Building Safety Act 2022 (BSA)

As explained in the Independent Review, the "product of the Hackitt Review and the subsequent consultations and scrutiny was the Building Safety Act, which has as a primary objective the creation of greater accountability and responsibility for fire and structural safety issues throughout the life cycle of buildings".

Section 146 and Schedule 11 of the BSA give the Secretary of State wide-ranging powers to make construction product regulations which are intended to include, amongst other things:

  • The introduction of a general safety requirement, prohibiting construction products from being placed on the market unless they are safe products, meaning that they do not present a risk to the health and safety of people, or the risk is as low as possible;
  • An obligation for manufacturers to carry out a risk assessment in order to comply with the general safety requirement described above; and
  • The creation of a new category of "safety-critical" construction products, defined in Schedule 11 as those where "any failure of the product would risk causing death or serious injury to any person", and more stringent regulation of such products.
  • The creation of new criminal offences and the provision for enforcement actions and penalties for non-compliance with such regulations.

However, although these provisions have been in force since 28 June 2022, the regulations themselves have still not been published (although draft regulations were published when the BSA was still at Bill stage and subsequently withdrawn).

In August 2024, the Construction Leadership Council (CLC) report called for the Government to publish the plan as soon as possible, noting that secondary legislation regarding products is "urgently needed" and that "at a minimum, a timetable / plan for the roll out would at least allow industry to plan, as the many subsequent actions will take years." We continue to await publication of draft secondary legislation and will monitor and report on this once published.

Product testing, certification and marking: extension of period of recognition of CE marking

The letters "CE" (Conformité Européenne) appear on products that are traded on the single market in the European Economic Area (EEA) and indicate that the product meets the relevant EU requirements and is compliant with applicable legislation. There are multiple EU bodies that enforce CE marking legislation.

Following the UK's withdrawal from the EU, it was announced that CE marking would be replaced by a new UK Conformity Assessed (UKCA) mark, subject to a grace period during which businesses could use either CE or UKCA marking. However, extensions of CE mark recognition have been announced in respect of a number of products and in September 2024 Government issued a statement which confirmed that the Government will extend the period of recognition of CE marking for construction products.

This follows calls from industry, most recently in the Construction Leadership Council (CLC) report mentioned above, for the end of the transition period for CE marking for construction products to be "indefinitely postponed". The Government statement:

  • acknowledged the findings in the Independent Review that "there is currently insufficient testing and certification capacity in the UK alone to provide the volume of conformity assessment that would be required were CE recognition to end"; and
  • noted that it was "also clear that ending recognition of CE marking without reforming the domestic regime would create trade barriers and negatively affect the supply of products that meet recognised standards."

Historical liability for defective construction products

In addition to the proposed new regime for regulation of construction products being placed on the market, as described above, the BSA has introduced new rights of action in respect of construction and cladding products. We will focus on these in a further insight in the new year, together with other potential claims that might in our experience flow from disputes relating to construction products.

If you have any questions about the issues raised in this article, please get in touch with Gemma Whittaker or Natalie-Barton-Howes.

Footnotes

1 As defined in Article 2 of the EU Construction Products Regulation No 305/2011.

2 Written statements - Written questions, answers and statements - UK Parliament

3 Independent Review of the Construction Product Testing Regime, para. 8.2.