Construction Products: Get to know the Building Safety Act

The Building Safety Act will reform construction products' regulatory and liability regimes. The new regulations introduced by the Act will apply to the marketing and supply of all construction products. 

Issued in July 2020, the first draft of the Building Safety Bill followed an independent review of building regulations and fire safety carried out by Dame Judith Hackett. It is the primary legislative response to the Grenfell Tower disaster, taking forward the review recommendations.

The Building Safety Bill received Royal Assent on April 28th, 2022. Now an Act of Parliament, the Act contains provisions intended to secure the safety of people in or about buildings with the creation of a national framework designed to "create lasting generational change." 

I call on everyone involved in the design, construction, and management of buildings in England to step up, get ready for the changes, and work together to drive the necessary culture change to protect people and deliver safe and good quality buildings.

-Peter Baker, Chief Inspector of Buildings at the Health and Safety Executive.

What does this mean for construction product manufacturers? 

Within the Act, construction products are given the exact definition as that under Regulation (EU) No. 305/2011: 

"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 work." 

Although draft regulations are yet to be published, Schedule 11 of the Building Safety Act provides product manufacturers with a sound indication of what is likely to be included in the new Act. Schedule 11 sets out the statutory framework that extends to all construction products and not simply those used in higher-risk or residential buildings.

Schedule 11 of the Act outlines provisions relating to:

• Declarations of performance and how they are marketed.
• Statements and claims made about a product's performance.
• Product packaging and markings.
• The information required for presentation (including risk information).
• The monitoring, assessment, and verification of performance (including sample testing).
• The storage and transportation of products.
• The taking of corrective action, including market withdrawal, product recall, and information on whom the product has been supplied.
• The recording and follow-up of complaints.
• The production and retention of documentation and samples.
• The notification of risk to relevant authorities and subsequent co-operation.
• The appointment of authorised representatives.

Comparable to the consumer product requirements in the 2005 General Product Safety Regulations, the Act will prohibit the marketing or supply of construction products deemed unsafe. Construction products will only be considered safe if, under ordinary conditions, the product does not present any reasonable risk to the health and safety of a person. It is important to note that the new regulations will cover all products, including those already on the market and future products not yet available for sale.

Which products are considered "safety critical"?

Schedule 11 defines safety-critical products as "construction products included in a list contained in construction products regulations."

Although the list has yet to be drawn up, the Act provides insight into what products may fall into the safety-critical category. The Government will construct the list with the help of industry professionals and persons in reputable positions. 

The Act, in its current state, indicates that construction products will be included in the list if:

• Any product failure would present a risk of death or serious injury (in the view of the Secretary of State). 
• The product does not have designated standards for the 2011 Regulations.

How will these regulations come into effect and be enforced?

To ensure all construction products of the UK market fall under the regulatory regime and are safe for use, the new regulations will be made by statutory instruments. Despite the Building Safety Bill becoming law, secondary legislation is required to support the implementation of new measures. The Government will roll out its secondary legislation programme over the next two years.

As evidenced in the aftermath of the Grenfell Tower disaster, numerous construction products failed and continue to fail to meet the current regulatory framework. To counteract this, the new market surveillance and enforcement regime will strengthen compliance monitoring and enforcement action where necessary. The Act will create new regulatory powers, civil penalties, and criminal offences for cases in which manufacturers breach regulations. 

New regulatory roles created by the Act will be able to take action against product manufacturers and marketers who have made false statements or misleading claims about the performance of a construction product. Such powers will be exercised by local Trading Standards, the Secretary of State, or a person appointed by the Secretary of State. 

The National Construction Products Regulator (NRCP), a newly established role based in the Office for Product Safety and Standards (OPSS), will have the power to: 

• Carry out market surveillance and test purchases.
• Enter, inspect, search, and seize products and any evidence of non-compliance. 
• Require the retention and provision of information.
• Require a person by notice to warn others of the risks attached to a product.
• Require marking a product in respect of the risks attached to it.
• Suspend for a specified period or prohibit the marketing or supply of a product.
• Withdraw a product from the market.
• Recall a product from persons to whom it has been supplied.

As it stands, the NRCP has already started taking enforcement action under the scope of existing regulations.

The Government will further enforce the new regime through established sanctions for non-compliance or suspected non-compliance. The new administration may include criminal offences, prosecuting such violations, and provisions conferring powers to impose civil sanctions (including fines).

What changes have been made since the Bill became an Act? 

There have been several significant changes regarding accountability. Contrasting an earlier stance taken by Michael Gove back in February, manufacturers and suppliers will have increased liability under the Act. 

The Act imposes a new duty under section 2A of the Defective Premises Act 1972. It states that anyone who takes on work concerning any part of a relevant building must ensure that work is done professionally so that the relevant building is fit for habitation upon completion. This update places further emphasis on the utilisation of "proper" materials. In addition, the Act has extended the limitation period for prospective claims brought under sections 1 and 2A of the Defective Premises Act from 6 years to 15 (from the date of completion). 

Under sections 146 to 150 and Schedule 11, the Act also allows claims against construction manufacturers and sellers. Building owners may prospectively make these claims up to 15 years from the suitable date. More specifically, in the case of cladding products, the limitation period is 15 years prospectively and 30 years retrospectively. 

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) placing the product on the market first. Additionally, suppose a product is manufactured outside Great Britain and placed on the GB market by another entity. In that case, that entity is responsible for ensuring that the safety standards are met. For those sourcing goods from outside GB, speculations have been made to suggest that the first GB entity in the supply chain will assume all the manufacturer's liabilities. The practical consequence is that the supply chain will take substantially greater importance. 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 rectification costs.

Manufacturers/distributors will be expected to evaluate the risks of their products according to their intended and potential uses (not every possible product use will need to be considered). They will then need to reduce those risks as far as possible and provide information about any remaining threats.