In light of the evolving legislative landscape, James Parlour, FIS Technical and Vetting Manager, discusses the risk of a distributor or a contractor becoming the unintended manufacturer.
For many of us in construction, the word manufacturer conjures up an image of a factory massproducing products from raw materials. Some colloquial definitions reinforce these ideas by referring to the scale of production or the ownership of production facilities. We do not tend to think of a distributor or a contractor as a manufacturer, but the risk of becoming the unintended manufacturer is greater than you might think given the shifting legislative landscape.
For example, it might be obvious when a component is substituted from a manufacturer’s system that responsibility has shifted, but more complex examples exist where a “kit” of components might be assembled on-site for the first time and a contractor might fall into a liability without knowing it.
Back in 2022 in SpecFinish, we explored how it is possible for parties to unintentionally inherit the role of designer along with all the associated responsibilities. Similarly, the term “manufacturer” in construction legislation and its relationship with product definitions allows for some parties to unintentionally take on similar roles and responsibilities, sometimes without being equipped to fulfil them.
How is the law changing?
Under UK law, the definition of a manufacturer is “an individual or business who manufactures a product, or has a product designed or manufactured and markets that product under their name or trademark”. Manufacturers of construction products are now regulated by the Construction Products Regulator (CPR)2. The CPR sits in the Office of Product Safety (OPSS) and there is growing harmonisation between the General Product Safety Regulations (where case law has already determined that a contractor can be deemed a “producer of product”3) and the regulation of construction products.
The Building Safety Act (BSA) makes this claim easier to prove by defining a producer of a product as “Persons carrying out activities in relation to construction products” including (without limitation):
(a) a manufacturer of construction products
(b) a person who markets or supplies construction products to others, and
(c) a person who imports construction products into the United Kingdom for use, marketing or supply;
The Construction Products Cause for Action4 has been carried into law by the BSA and sets down the ability to claim against a product manufacturer, distributor, supplier, etc. who has supplied a defective or mis-sold product that has caused a breach of Building Regulations5 necessitating remediation. This definition can be interpreted, albeit broadly, to encompass anyone who supplies a construction product when you consider a few factors, particularly in the case of the following common examples:
• A distributor who sells components that are intended to be used together to form a unique kit of parts.
• A distributor sells products under their trade name which are manufactured in whole or in part by others.
• A contractor who installs a set of components not previously warranted by another manufacturer.
The role of the product/kit
The nature of how construction products and kits are defined could have a significant effect on the interpretation of when a product is placed on the market and by whom. The definition of a construction product is “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 for the basic requirements for construction works”. Subsequently, the definition of a kit is “a construction product placed on the market by a single manufacturer as a set of at least two separate components that need to be put together to be incorporated in the construction works”.
Whilst it is possible to procure and install a complete kit or product from a single manufacturer, these product definitions do allow for significant variation to what is traditionally considered a “kit” leading to multiple scenarios where the responsibilities of the original manufacturer could be superseded by another party responsible for the product eventually installed in the following ways:
- If one or more components are substituted from an original manufacturer’s kit then the new kit is likely to be considered a unique construction product. Drywall partitions are an example of this where seemingly identical components can be substituted and assumed to perform similarly.
- Where a complete set of components has already been tested and/or warranted by another manufacturer for some performance characteristic/s, other characteristics may not be warranted, and the final product may be considered unique for these characteristics. Fire door assemblies are an example of this where the components have been tested by a core/blank manufacturer who can still warrant the fire performance, but may not guarantee other performance characteristics at the same time such as acoustic insulation or robustness and security.
- Construction kits may be considered at the level of a “sub-assembly” that can exist as part of a larger kit not supplied by the original manufacturer. Suspended ceiling kits are an example of this where BS EN 13964 allows for a “suspension kit” to be placed on the market that when installed as a complete ceiling (including tiles) may be considered a unique construction product.
- Any time a complete set of components has been tested and/or warranted by another manufacturer, but that kit is not supplied in full by that manufacturer, the complete kit may be considered to have been manufactured by the party who sourced the final assembly.
- Any of the above circumstances can act together in combination
What are the inherited responsibilities?
It may not be the case that the unintentional party is considered the manufacturer for every possible responsibility. It is more likely that a portion of the responsibilities typically assumed to fall on the original manufacturer are superseded by the unintentional party. Some of the responsibilities associated with the manufacturer role that need to be considered are:
- A requirement to demonstrate organisational competence has some unique applications for manufacturers that need to be considered.
• Manufacturers have individuals who are competent at different levels (including sales and marketing staff) to understand or interpret BS or EN test evidence through a number of EXAP, DIAP and assessment methodologies and to make or relay accurate performance claims against specified standards using correct terminology.
• The Code for Construction Product Information7 (CCPI) is an independent third-party assessment of a manufacturer’s performance claims, that can also be undertaken by Merchants and Distributors. The full code is free to download and contractors should consider applying the principles to their processes.
• The golden thread requires that the right information get to the right people at the right time. In the case of manufacturers, comprehensive product data is key.
• Product information should be communicated on a product data-sheet (PDS) based on a product data template (PDT) which sets the convention for the structure of the information.
• Product data needs to communicate detailed information regarding; dimensional and volumetric, construction (installation and interface), performance, identification including conformity marking, inspection requirements, and guidance on deinstallation end of service life.
• Responsibility to provide certain performance warranties and evidence of performance may or may not remain within the scope of the original manufacturer so consider the requirement for warranties of other performance characteristics, which are often numerous and may not appear directly in the specification.
• A familiarity with relevant product standards may be required to understand the full warranty requirements.
• There may be a requirement to produce a declaration of performance and conformity mark in accordance with a designated product standard under the construction products legislation.
• Manufacturers have means of identifying and managing product defects after they have been supplied and put into service, along with protocols for product recall.
• Design responsibility may also be inherited as a function of manufacturer/producer responsibilities in accordance with the guidance and rationale given in the unintentional designer.
