Duties of importers under the new Gas Appliances Regulation (GAR)

We have written a few articles and blog posts aimed at manufacturers (here and here), on the various technical aspects of the GAR, and its introduction in April 2018. In this latest post, I have decided to change tack a little and turn my attention to the requirements that will be applied to importers of gas appliances when the GAD is replaced by the GAR next year.

To set the scene, I did a bit of research on statistics relating to the numbers of unsafe gas appliances supplied throughout the EU – totally accurate numbers are quite hard to come by, but a pleasant afternoon trawling through the EU “RAPEX” site throws up a decent selection of gas appliances that have been found to be unsafe and removed from the EU market (if you are interested, I plan a follow-up article on analysis of the underlying reasons behind this). But in the context of regulating importers, the shocking number is that some 85% of these unsafe gas appliances originated from outside the EU, which is massively out of proportion to the market share of imported appliances.

Taken at face value, the data suggests there is a general problem with gas appliances imported from outside the EU. Logically, it would seem that at least part of this problem is because enforcement of the GAD requirements is frequently not possible, due to the non-EU manufacturers being outside the jurisdiction of the European courts, and importers that bring the goods into the EU having few, if any, responsibilities under the GAD.

It seems to me that the European Commission have the same opinion, and they have introduced provisions within the GAR to ensure that all economic operators within the EU can be held to account for the safety of the gas appliances they supply.

Here is the preamble from the GAR that explains the background to the requirement in plain text:

"It is necessary to ensure that appliances and fittings from third countries entering the Union market comply with the requirements of this Regulation, and in particular that appropriate conformity assessment procedures have been carried out by manufacturers with regard to those appliances and fittings. Provision should therefore be made for importers to make sure that the appliances and fittings they place on the market comply with the requirements of this Regulation and that they do not place on the market appliances and fittings which do not comply with such requirements or present a risk.

Provision should also be made for importers to make sure that conformity assessment procedures have been carried out and that the CE marking on appliances and fittings and documentation drawn up by manufacturers are available for inspection by the competent national authorities."

I think this states the intent quite clearly. importers are going to have to do more to ensure that “appropriate conformity assessment procedures” have been carried out by the manufacturers, and simply taking their word for it is no longer going to be an option. It’s a big change (and a good one, in my opinion) but what should the reasonable and diligent importer actually do?

NB: None of this applies to “own-brand” products – the GAR is clear: if you supply the product under your own name then you are the manufacturer (regardless of who actually assembles the product) and the responsibility for completing the full conformity assessment process falls to you.

I thought it might be a good idea to give you the benefit of some of the specific experiences that I have seen time and time again when dealing with enforcement bodies or product liability cases. I’ve structured this around the GAR Article 9 “Obligations of importers” to make it easier to follow:

1. Importers shall place only compliant appliances or fittings on the market.

That’s it! Importing a non-compliant appliance and placing it on the market is an offence that didn’t previously exist under GAD, as only the “manufacturer” had responsibility for placing compliant products onto the market. Importers now have to ensure that they are showing diligence in this matter (and, of course, many already do).

2. Before placing an appliance [fitting] on the market, importers shall ensure that the appropriate conformity assessment procedure referred to in Article 14 has been carried out by the manufacturer. They shall ensure that the manufacturer has drawn up the technical documentation, that the appliance bears the CE marking and is accompanied by instructions and safety information in accordance with point 1.5 of Annex I, and that the manufacturer has complied with the requirements set out in Article 7(5) and (6).

This is getting into the detail – the GAR requires a two-stage process (Type Examination plus Surveillance) and the importer needs to be sure that both of these stages have been completed by the manufacturer – it is thought that many non-EU manufacturers have been skipping the surveillance stage of the process.

The diligent importer will ask for some or all of the following documentation from the manufacturer and doesn’t just take these at face value, but checks them as well.

EU Declaration of Conformity (DoC): Does it exist?

Is the manufacturing company name correct, and signed by the right person?
Is it dated appropriately? If this was dated from five years ago, but they only just designed your product, then personally I’d be suspicious.
Does it cover the specific product being supplied? And no, not another that is “similar” to your one, the exact same one.
Does it cover all the EU Directives that reasonably apply to the product? There may be several Directives that apply to a more complex product, and it’s a good idea to draw up a little checklist to ensure they have all been covered.
Are standards used generally the right ones (from the title and scope – these are usually publicly available) and the standards are the latest ones (easy to check from the BSI online shop)?

GAR-Specific Documents:

Do both the “Type Examination” and “Surveillance” certificates exist and cover the product being supplied (and are consistent with the DoC above)? This is important, as the GAR assessment includes things like instructions and packaging, and if the manufacturer changes these to suit a particular importer then the product is unlikely to be covered by the certificates.
Is the company issuing each certificate actually a “Notified Body” authorised to issue these documents (a 30s check on Nando will do it)? There have been several cases of companies passing themselves off as Notified Bodies in Asia – their “certificates” are worthless.
Are the certificates actually genuine? You wouldn’t believe the amount of counterfeiting of test certificates that goes on. A five-minute phone call or an email to the Notified Body concerned should allow you to verify certificates as genuine. Some companies, like BSI, have online databases and may even allow you to upload your PDF certificate so it can be checked for tampering (e.g.: by the addition of extra models).
Are the technical standards used to show compliance appropriate (from the title) and the latest version (easy to check from the BSI website)? Challenge the manufacturer to justify themselves if out-of-date standards are being used.
Is the “CE Mark” on the appliance correctly sized and includes the number of the Notified Body performing surveillance (and this is consistent with the certificate supplied)?

3. Importers shall indicate on the appliance [fitting] their name, registered trade name or registered trade mark, and the postal address at which they can be contacted or, where that is not possible, on its packaging or in a document accompanying the appliance. The contact details shall be in a language easily understood by consumers other end users and the market surveillance authorities. A clear signal that the authorities will need to know who imported the product so that they can be held to account should there be problems later.

4. Importers shall ensure that the appliance [fitting] is accompanied by instructions and safety information in accordance with point 1.5 of Annex I, in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned.

Inadequate instructions for installation and use are one of the biggest problems I see when dealing with potentially unsafe products that have been placed on the market. In the gas industry, this seems to be a particular problem affecting portable leisure and camping products, where you do not generally have the input of a competent gas installer as you would with, say, household gas appliances. Too often, we see instructions for assembly and use that make little sense and are difficult to follow – they may contain each of the very specific warnings required by the standard, but still be presented in a way that lay-people wouldn’t understand (what is “adequate ventilation”, for example, and where would you find “the rules in force” for a barbecue?)

Importers have a great opportunity to ensure the instructions make sense - why not assemble the product yourself and see if the instructions allow you to do it easily enough? Are the safety warnings clearly stated and appropriate for the product or could some of them be unreasonable (e.g.: the requirement to use only very small cooking pans on outdoor stoves recently found to be unsafe)?

What about the presentation? Instructions have to be “easily understood”, and I struggle to see that sometimes when I find a page of A4 instructions that includes the manual in 5-6 different languages, all condensed into microdot to fit them onto the page. Specify a minimum font size that is appropriate for your intended users (older people need larger fonts) and make sure that safety warnings are differentiated by the use of larger fonts, bold text etc. This is really easy stuff for importers to influence during the purchasing process.

5. Importers shall ensure that, while an appliance or a fitting is under their responsibility, storage or transport conditions do not jeopardise its compliance with the essential requirements set out in Annex I.

Hard to imagine this being a major issue, but I am aware of a few instances where transport, storage and handling have caused problems with gas appliances and controls. Importers clearly need to be sure that packaging is adequate to prevent damage to the product (and I’m sure this is done already) but things like storage temperature (both hot and cold can be an issue) and humidity can adversely affect some devices, so it’s always worth asking the question of the manufacturer to be sure your warehousing conditions are adequate.

6. When deemed appropriate with regard to the risks presented by an appliance, importers shall, to protect the health and safety of consumers and other users, carry out sample testing of appliances made available on the market, investigate, and, if necessary, keep a register of complaints, of non-conforming appliances and fittings and recalls of such appliances and fittings, and shall keep distributors informed of any such monitoring.

Some of this is straightforward – importers need to keep registers of complaints and faults they uncover (and make distributors aware of what is going on).

The biggest issue I see here (assuming all the original testing was done correctly, as evidenced above) is when the manufacturer introduces design changes (e.g.: to protect profit margins) without checking the impact this may have on the conformity. Sadly, this is very common, and the only way to be certain is to check the product yourself.

If importers have doubts or are unsure about the safety of a product, they now have a duty to carry out sample testing to investigate the problem. They can do this testing themselves, or there are plenty of other organisations out there that can help with this. I’d think it important for the importer to arrange this testing independently of the manufacturer and the Notified Body that tested the product originally, as this avoids any conflict of interest.

Importers should certainly get to know the manufacturer. Can you trust them not to make design changes without telling you? Is this covered by your supply contract? If not, maybe you may need to do some testing of your own or at least inspect batches (maybe comparing the current product with a reference sample that is known to be compliant) before allowing them to be shipped out. Article 9 (6) may require this of you.

Can you trust the notified body that has been involved in the testing and the production surveillance? Can you influence the choice of body to be one that you do trust?

7. Importers who consider or have reason to believe that an appliance or a fitting which they have placed on the market is not in conformity with this Regulation shall immediately take the corrective measures necessary to bring that appliance or fitting into conformity, to withdraw it or recall it, if appropriate. Furthermore, where the appliance or the fitting presents a risk, importers shall immediately inform the competent national authorities of the Member States in which they made the appliance or the fitting available on the market to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken.

If the importer’s own testing, or some other scenario, confirms that the product is not in conformity, then they have a duty to act. withdrawing it, recalling it or modifying it as appropriate. They also have the same duty as manufacturers to inform the authorities should they become aware they have supplied a product that presents a risk.

8. Importers shall, for 10 years after the appliance or the fitting has been placed on the market, keep a copy of the EU declaration of conformity at the disposal of the market surveillance authorities and ensure that the technical documentation can be made available to those authorities, upon request.

Importers need to keep records of all they have done – this is important if you are going to be able to demonstrate “due diligence” at some point in the future.

9. Importers shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation necessary to demonstrate the conformity of an appliance or a fitting in a language which can be easily understood by that authority. That information and documentation may be provided in paper or electronic form. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by appliances or fittings which they have placed on the market.

Importers’ records need to be in English and available for the authorities to inspect. Having the checks discussed above well documented will usually make such requests less time-consuming than they may be otherwise.

In summary, importers need to understand what a “CE Mark” actually is. it’s a promise from somebody that a product meets the minimum legal requirements for supply into the EU - nothing more, nothing less. Once people start to truly understand this, they can see the weakness in relying upon it with no questions asked. I despair at the number of importers I have spoken to, whose only defence is “it was CE marked, so I assumed it must be ok”.

I have outlined some of the processes that I would follow to show diligence if I were an importer – BSI is currently working on some training courses for a couple of Trade Associations to help upskill the people involved in these checks. Please contact us on 0345 0765 606 if that’s of interest to your company or association.