Testing for a Safer Future: The New Construction Product Regulations

On 28 April 2022, the much-anticipated Building Safety Act (BSA) received Royal Assent. The BSA creates a number of new regulations which apply to the construction process, and one of the most significant reforms is the introduction of new regulations and a new regulator to monitor the quality of ‘construction products’ to ensure they are safe.

What is a Construction Product?

A ‘construction product’ is not defined explicitly in the BSA, but section 148(9) links the definition to existing domestic and EU regulations. The main definition is found in the Construction Products Regulations 1991:

“any product which is produced for incorporation in a permanent manner of works”

This is a broad definition and is likely to encompass most materials used in construction.

‘Testing for a Safer Future’

The Department for Levelling Up, Housing & Communities (DLUHC) recently published an independent review of the Construction Product testing regime. DLUHC estimates that 20,000 to 30,000 products are left unregulated due to gaps in the current system and a number of recommendations are made for improvement.

The review exposes shortfalls in the current system, blaming both systemic issues and the conduct of individuals for its failings. The systemic issues can be summarised as follows:

• Only construction products under a designated standard are covered by the regulations. DLUHC estimates that only a third of all construction products are caught.
• The regulations were originally created to ensure fairness in the single market – there is no specific UK system for testing the safety of construction products.
• The framework by which standards are developed is slow, output is insufficient and of variable quality. Standards are therefore outdated, inconsistent or non-existent.
• The current system is complex and difficult to understand.
• The whole system is over capacity: this threatens quality of testing and is a barrier to reform.
• Enforcement is virtually non-existent.

In order to improve the system for testing construction products, the DLUHC makes a number of recommendations, including:

• Oversight of conformity assessment bodies to ensure independence and competence.
• Improved standards in testing of construction products at the surveying, sampling and reporting stages.
• A voluntary method of conformity assessment through third party certification.
• Improved awareness of the regime, including education on the importance of testing and certification in the interests of building safety.
• Clear labelling of tested products and systems: a reliable system will improve traceability and authenticity.

What are the new regulations going to change?

The intention of the new regulations is to ensure all construction products fall under a regulatory regime and are ultimately safe. It will also allow construction products to be withdrawn from the market if they are discovered to pose a risk.

The new regulations will prohibit the marketing or supply of construction products which are not considered ‘safe’. There will be additional requirements for a list of ‘safety-critical products’, yet to be determined, but where a failure of such products could risk death or serious injury and where there is not an existing designated standard that the products have to conform to.

Enforcement of the new Construction Product Regulations

The Office for Product Safety and Standards (OPSS) is responsible for the national regulation of construction products in the UK. The BSA introduced a new regulator within the OPSS: the National Regulator for Construction Products (NRCP). Once in operation, the NRCP will have wide-ranging powers to monitor the new regime and take enforcement action where required. Its powers will include rights to carry out market surveillance, search premises, seize non-compliant products and issue fines for non-compliance.

New liability relating to Construction Products

Liability under these regulations is governed by section 148 of the BSA and applies where the following four conditions are met:

(A) A person fails to comply with a construction product requirement, or makes a misleading statement in relation to the marketing/supply of a construction product, or manufactures a construction product which is inherently defective;
(B) The construction product is installed in/applied/attached to a building during construction or otherwise in relation to that building;
(C) After completion of works, the building/a dwelling within a building is unfit for habitation; and
(D) The construction product was a/the cause of the building or dwelling being unfit for habitation.

The person who satisfies Condition A is liable to pay damages to any person with a ‘relevant interest’ in the building/dwelling for any personal injury, damage to property or economic loss suffered as a result. In England and Wales, a ‘relevant interest’ means a legal or equitable interest in a dwelling, a building containing multiple dwellings or a dwelling contained within a building.

The limitation period for bringing a claim in England and Wales is 15 years from the date the “relevant works” were completed.

Practical Points

The new regulations should make it easier for organisations undertaking construction work to ensure that when construction is taking place, only safe products are used, providing appropriate due diligence procedures are in place. However, it is important to note that:

1. manufacturers will only be required to assess the risks of their products according to their intended and reasonably foreseeable uses. Manufacturers will not have to consider every feasible use of the product;
2. the new regulations will only require manufacturers to reduce those risks as far as possible and provide information about any remaining risks. There is no requirement to remove all risks, meaning remaining risks must still be managed; and
3. the duties under the new regulations for products manufactured outside GB will fall upon the importer not the manufacturer and so it is important to consider who this will be.

It is expected that the new Regulator will work closely with other regulators to co-ordinate regulatory action, particularly the new Building Safety Regulator which will oversee the safe design, construction and occupation of residential high-rise buildings.

To minimise the risk of non-compliance and to ensure buildings are safe, it is vital that organisations: 1) conduct supply chain due diligence to ensure that all new construction products are both compliant with the new regulations and safe for their intended use, and 2) consider carefully the procurement processes for any products purchased from outside GB to avoid inadvertently taking on the duties under the new regulations.

Elements of the BSA are yet to be finalised before coming into force in October 2023, so it would be conscientious to stay well-informed of new developments and their resulting impacts.

For more information on this topic, please contact Louise Mansfield, Legal Director or Louise Ducasse, Trainee Solicitor.