Brexit - Again!
UK Responsible Person = Importer with severe additional responsibilities
The MDSS solution:
Have MDSS set up an appointment with you to receive the solution for your individual business. A solution, which may also be extremely appealing to your distributor.
The UK authority (MHRA) published a new guidance on the UK responsible person (UK RP). MDSS, together with its clients, evaluated early on (during the drafting of the contract) that the UK RP is actually a new concept and can only be compared with the European Union (EU) Medical Device Regulation (MDR) Authorized Representative (AR) in some specific tasks. The standard AR contract is not sufficient. The new proposed UK law has something different in mind for an entity supporting out of the UK based manufacturers in terms of their compliance. As it seems, legal and liability ramifications play a key role. The new MHRA guidance tries to clarify this now.
Key aspects:
- Clarification of UK RP responsibilities
The importer is the UK RP!
Announcement of grace period for the implementation of the UK RP
MDSS specialized service towards its clients to cope with the new requirements
The MHRA guideline states: „If you are a UK-based importer and you wish to place a device on the market, you must have the authority from the manufacturer before doing so. This means that you will become a UK Responsible Person.”
This then means that the UK Importer being the UK RP:
- Must have a “letter of designation” from the Manufacturer
May be a person or a legal entity
Performs product registration
Pays the product registration fees
“Acts on behalf of the manufacturer established outside the UK”
Must take over specified tasks with regards to the manufacturer’s obligation under these regulations such as:
Performs verification of the technical documentation and other documents similar to the MDR Authorized Representative
Keeps available a copy of certain documents including the technical file for inspections by the MHRA
Fulfills other tasks similar to the MDR Authorized Representative
There are great concerns with the new proposed laws. As one UK entity already stated, they may not be able to buy any longer the product. His fear is that the purchase is of such a low volume and, therefore, not worthwhile for his supplier (manufacturer abroad) to entertain that business any longer with the increased scrutiny. Also, selecting a new supplier for him is now so burdensome that he may accept prices he normally would not! He preferably would now receive his product from a UK manufacturer.
As the manufacturer abroad:
- Be aware that each individual distributor of yours will automatically be the UK RP. By nature, they are the importer of your products and place the product on the UK market.
- You will have to designate them to be the UK RP if you want to continue business with them.
- You will have to give them a similar mandate as the MDR AR.
- You will have to trust them with your technical file and other information.
It is not clear why the law actually specifies a UK responsible person. It would have been sufficient to simply impose the requirements on the Importer directly without defining a new term. However, due to the structure provided in the law, by reading the specific UK RP requirements only, someone could come to the conclusion that an independent UK RP is envisioned.
Therefore, the initial MHRA guidance indeed gave the pronounced impression that a manufacturer abroad should designate a UK RP:
- Independent of the importer and
- being a single UK RP
The new MHRA guidance clarifies that the importer is the UK RP (see above) but still suggests installing an independent UK RP. There may be solutions for this requirement with the statement: “Whilst there is no existing list of UK Responsible Persons, you may wish to speak to existing EU Authorized Representatives to determine whether they will be offering services as a UK Responsible Person.”
Does it make sense for your AR to offer such a service? The customers (UK Importer = UK RP) of the manufacturer are automatically the UK RPs! Furthermore, does your AR normally sell your products? The manufacturer specifically selected an AR not being engaged with the sales/import of the products. However, the guidance seems to indicate that the MHRA would like to see a professional UK RP implemented to take over these nontrivial UK RP tasks and that they may have a solution in mind for these new requirements. However, that solution is not outlined in the guidance.
In case of a hard Brexit (Brexit without a deal), the manufacturer will have the time to install such an agreement within the timeframe as outlined for the registration. The guidance states in regards to the timeline:
„The requirement for a manufacturer to have in place a UK Responsible Person is in line with the grace period for registering your devices with the MHRA. Details of the grace period for registrations is set out in our guidance on registrations. Therefore, you must ensure that you are designated as a UK Responsible Person by the time you register with the MHRA.”
With the importer automatically being the UK RP, it actually should read that the UK Importer must implement the requirements of the UK RP and, therefore, must ask his supplier (the manufacturer abroad) to allow him the sales (placing on the market) of the products and that he is allowed to act on his behalf etc... It is up to the manufacturer whether he will conduct now business in the UK with such requirements.
The grace period is 4, 8 and 12 month and it depends on the classification of the products with the highest classification being the shortest and so on.
There seems to be a different understanding in the guideline in terms of the registration. It is stated that “the UK RP will then assume the responsibilities of the manufacturer in terms of registering the device”. However, the law outlines the “Registration of persons placing general devices on the market” and that is by nature the UK manufacturer or the UK Importer. The requirements for that person among other aspects:
“supplies the Secretary of State with a description of the relevant device; and
pays to the Secretary of State the relevant fee in accordance with regulation 53.”
Our overall impression of the new UK law is that the UK is very UK centered and that there is actually no responsibility for the manufacturer if not located in the UK. The Importer must ensure that he purchases products that comply with the UK law (for the time being CE marked products), must register the products and defend your products because he is the entity facing severe consequences. Legal as well as product liability are aspects the importer faces! The product liability is by nature bestowed upon the legal entity who places the products on the market and the legal concerns are directly outlined in the UK Law.
“(3) A UK responsible person—
may be proceeded against as a person placing the device on the market for the purposes of these regulations;
…”
For a manufacturer abroad, considering the above, there is nothing to be gained to install an independent UK RP.
Therefore, the motivation to install an independent UK RP may fade significantly by the manufacturer.
We are of the opinion that both entities, the manufacturer abroad and the Importer may not be content with the requirement. We suggest a specific solution, which may be agreeable with your customer (the UK Importer).
The MDSS solution:
Have MDSS set up an appointment with you to receive the solution for your individual business. A solution, which may also be extremely appealing to your distributor.
We strongly recommend to evaluate the actual law which can found here.
The guidance on the UK responsible person can be found here.