Guidance

National regulator for construction products: factsheet

Updated 5 April 2022

This guidance was withdrawn on 25 July 2022

This guidance is withdrawn as it is no longer current. Please see the latest guidance on the Building Safety Act.

What are we going to do?

We are establishing a National Regulator for Construction Products to oversee a more effective construction products regulatory regime and to lead and co-ordinate market surveillance and enforcement.

This regulator will confront poor practice and provide vital market surveillance so that safety concerns can be spotted and dealt with earlier, including requiring the removal of unsafe construction products from the market and taking action against those who do not comply with the regulations.

Our package of reforms will help ensure that all construction products placed on the UK market are safe, and that the public can be confident that products used to construct our homes will perform as intended.

This national regulator will bring leadership to the regulatory regime, undertaking proportionate, consistent and effective action. It will:

• provide vital market surveillance and oversight, including maintaining a national complaints system and supporting local Trading Standards so that safety concerns can be spotted and dealt with quickly

• lead and co-ordinate the enforcement of the strengthened construction product regulations, including removing products that pose a safety risk from the market

• provide advice and support to the industry to improve compliance as well as providing technical advice to the government

• carry out or commission its own product-testing to investigate non-compliance

• establish a robust and coherent approach with the Building Safety Regulator and Trading Standards to drive change across the sector

How are we going to do it?

In January 2021, this government announced that the National Regulator for Construction Products will be established within the Office for Product Safety and Standards (OPSS). OPSS is taking on the oversight of construction products in addition to its existing responsibilities, and will receive up to £10 million in 2021/22 from the Ministry of Housing, Communities, and Local Government to establish this new function.

The funding provided will not be used to cross-subsidise OPSS’s other functions and MHCLG, BEIS and OPSS have put in place monitoring and governance arrangements to ensure that this funding is spent by OPSS to establish its new functions to ensure construction product safety.

The Building Safety Bill will pave the way for the National Regulator for Construction Products and provides the Secretary of State with powers to strengthen regulations for the marketing and supply of construction products on the UK market.

The Bill will enable the Secretary of State to strengthen the existing market surveillance and enforcement regime. Using the powers in the Bill, the Secretary of State will be able to confer powers on relevant authorities, such as the National Regulator for Construction Products and local Trading Standards, to investigate, enforce against and impose sanctions on those who break the rules.

These powers include powers to enter, inspect and search premises, require the withdrawal of products from the market, and impose civil sanctions (including fines). Such powers will enable the national regulator to help to restore public confidence in the industry by ensuring that those who try to flout the rules face serious consequences, and undertaking market surveillance so that safety concerns can be spotted and dealt with earlier.

Regulators will also be given powers to recover costs for certain activities from regulates parties, and to request, share and use certain information pursuant to their functions. Further detail will be set out in secondary legislation.

The National Regulator for Construction Products will begin to operate using its full powers once the Building Safety Bill and corresponding secondary legislation come into effect. Subject to the Parliamentary process, our working assumption is that full powers will come into force within 12-18 months of the Bill being granted Royal Assent.

In the meantime, OPSS has begun to set up its construction products functions, is working with other regulators within the scope of the existing regime, and is building capacity so that it is ready take on its full remit once legislation has come into effect.

Background

Following the Grenfell Tower fire, the Government commissioned Dame Judith Hackitt to conduct an Independent Review of Building Regulations and Fire Safety and to make recommendations on the future regulatory system.

In her final report published in May 2018, Dame Judith made several recommendations to reform construction products regulations, which included the need for national oversight of the sector:

Recommendation 7.6

a. Government should ensure there is a more effective enforcement, complaint investigation and market surveillance regime with national oversight to cover construction product safety.

b. Government should consider whether this could be achieved by extending the remit of the Office for Product Safety and Standards.

c. The introduction of national level market surveillance should drive the introduction of risk-based testing of products that are critical to the safety of HRRBs higher risk residential buildings.

The government accepted all 53 of Dame Hackitt’s recommendations and committed to address systemic failings identified by the Hackitt Review. This includes establishing a national regulator for construction products as part of our reforms to ensure a more effective enforcement of a stronger and clearer regulatory regime for construction products, which will be introduced through our Building Safety Bill.

The national regulator is being established in the Office for Product Safety and Standards (OPSS), which will take on this function alongside its existing responsibilities.

Grenfell Inquiry hearings raised concerns about manufacturers making misleading claims about the performance of their products. The regulations that will be made under powers in the Bill will enable the National Regulator for construction products and local Trading Standards to investigate, enforce against and impose sanctions for false and misleading claims about the performance of construction products, including those made in advertisements.

Will the regulations and regulator only look at new products, or also at products already on the market?

We intend that the new regulations cover all products, including those already on the market and future products that are not yet available for sale. This will include product categories that are not covered by existing construction product regulations.

The Building Safety Bill will create the power to make regulations to require construction products to be safe before putting them on the UK market, and create a statutory list of ‘safety critical’ construction products (where their failure would result in death or serious injury). We will bring the regulation of safety critical products in line with arrangements for products already covered by the existing regulatory regime.

Will the regulator test construction products directly? Or are you going to rely on manufacturers’ own assessments?

The national regulator will develop its own testing capability to establish whether manufacturers are complying with regulations – which is critical to carrying out market surveillance and enforcement effectively. This will not affect existing, ongoing requirements for manufacturers independently to certify their construction products, which may include third party testing.

The government has also commissioned an independent review to examine weaknesses in the testing regime for construction products and recommend how to prevent abuse of the system. The review will report later this year.

What sanctions will be available to this national regulator?

Where manufacturers are found to have non-compliant product on the UK market, we intend to give the regulator powers to recall those products, to require that they be withdrawn from the market, and to issue civil penalties, including fines. Further detail will be set out in regulations to be made under powers set out in the Building Safety Bill.

Where a criminal offence has been committed under the new construction product regulations, sanctions will include fines, imprisonment or both.

Will the regulator be able to take retrospective action?

The improved construction products regulations that will be created under powers from the Building Safety Bill will ensure that all construction products on the UK market will fall under our regulatory regime.

This means that our regulations will apply to any new product that a company wants to sell in the UK, and to any existing products that a company continues to sell. The national regulator will monitor industry-wide compliance with the regulations, and issue severe penalties to anyone flouting the rules.

If a company previously sold a product that breached our regulations but no longer sells that product, the regulator may be able to act against the company for breaching the rules that were in place at the time of the offence. This may depend on the statute of limitations for the offence and other considerations, on a case-by-case basis.

When will the national regulator for construction products start operating?

OPSS has begun to set up this national regulator and is working closely with other regulators within the scope of the existing regime, including local authority trading standards.

The regulator will begin to operate using future powers once the Building Safety Bill and corresponding secondary legislation come into effect. Subject to the will of Parliament, our working assumption is that full powers will come into force within 12-18 months of the Bill being granted Royal Assent.

On what grounds can the national regulator “remove any product from the market that presents a significant safety risk”?

The Building Safety Bill will create a power to make regulations to require construction products to be safe before putting them on the UK market, and to create a statutory list of ‘safety critical’ construction products (where their failure would result in death or serious injury).

We will bring the regulation of safety critical products in line with arrangements for products covered by the existing regulatory regime. Regulators will have powers to require the removal from the market products which do not comply with the regulations.