The British Measurement and Testing Association (BMTA) is a Trade Association for companies and organisations who have as a core element of their business measurement, calibration and testing. We currently have 80 members who operate some 400 UKAS accredited laboratories in a range of economic sectors including manufacturing, aerospace, consumer product testing, environmental testing and food safety. A number of our members are engaged in testing construction products including fire safety testing. Our comments and responses thus focus on the Government’s proposals on construction product regulation, safety and testing and the development of standards for these products in Chapter 5 of the consultation document.
- The Association welcomes the Government’s commitment in Chapter 1 paragraph 6 ii to developing a better understanding of what is required to ensure that buildings are safe through clearer standards and guidance, as well as improving the rigour of the product labelling, testing and marketing processes to ensure that people working on buildings use safe products. The Association has some concerns over the appropriateness and reliability of the standardisation process and associated testing protocols which we explain in more detail in our comments below.
- The Association also welcomes the action of the Association of Composite Door Manufacturers (ACDM) in paragraph 11 third bullet point to establish a collaborative testing programme bringing quality product meeting the required standard back to market.
- We also strongly endorse the ACDM’s decision mentioned in the fourth bullet point that all of their members will sign up to a third-party accreditation scheme carrying out additional checks on their fire doors to drive up quality across the market.
- The Association welcomes the Government’s action in paragraph 13 to appoint BRE Ltd. to conduct a testing programme on non-aluminium composite materials to improve the evidence available about their performance in fire.
- Furthermore, we strongly endorse the Government’s action in the fifth bullet point to amend guidance to restrict the use of assessments in lieu of testing. It has been our longstanding view that the assessment of products’ compliance with standards should only be undertaken by 2 means of third-party independent testing by UKAS accredited laboratories rather than through desktop studies for reasons we explain in more detail below.
Regulation and oversight:
- The Association strongly supports the government’s proposal in paragraph 302 that the oversight and regulation of construction products should be strengthened to make manufacturers’ responsibilities clearer and increase market surveillance and oversight, including through a national complaints system and extend and strengthen independent assurance schemes. Product regulation will need to be based on robust and relevant product standards and rigorous and reliable testing to assess products’ compliance with these standards. Similarly, market surveillance should be based on testing rather than on self -declaration of conformity by manufacturers which in some instances has proved unreliable. In our view it is essential that product testing in support of standards and market surveillance is undertaken by independent third-party laboratories which are appropriately accredited by UKAS if it is to achieve credibility. Accreditation by UKAS provides authoritative independent evidence of the quality of testing undertaken, and thus brings additional confidence in the performance (and safety) of the products concerned.
Oversight of the construction products system:
- The Consultation Document states correctly in paragraph 335 that construction products are used throughout the lifecycle of a building and have a critical impact on its safety. The definition of construction products is that stated in the EU Construction Products Regulation 309/2011 (CPR) which refers to products and kit used in construction. Whilst this is pragmatic it is perhaps an oversimplification which can mislead the interpretation of conformity assessment in the context of a building’s safety over its life cycle.
- Buildings are constructed from materials such as steel, timber, brick, concrete and glass and from components and assemblies such as windows, cladding panels, roofing and partitioning. The materials may either be used alone, for example steel frames or timber roof trusses, or in combination for example in roofing systems which may be made from steel sheet covered by a layer of polymeric insulation and a waterproof covering comprising several layers of polymeric materials bonded together, topped off with a layer of crushed stone. A cladding panel can be made from coated metal, polymeric materials, steel fixings and the joints between panels sealed with various types of polymeric sealants.
- The CPR controls placing on the market of many, but not all of these products by requiring them to conform to Harmonised European Standards or European Technical assessments (ETA). The European standards for the most part are based on international standards produced by the International Standards Organisation (ISO) and the International Electrotechnical Commission (IEC). But in our view there are shortcomings in the development of these standards. The standards specify minimum performance requirements for each product and may specify testing protocols which must be used. The standards are drafted by groups of technical experts from around the world who reflect the different cultures, climates, political systems and attitudes to safety in the countries from which they come. The experts often come from competitor companies within an industry. The standards are agreed by consensus within the expert groups (prior to voting by national standards organisations) and are thus effectively the lowest common denominator upon which all parties can agree. This makes them very much minimum standards.
- Furthermore, in order to control variables and ensure reproducibility, test methods specified as part of the standards may be somewhat contrived in nature. This may be sufficient to 3 differentiate products, identifying those which are ‘best’ and those which are ‘worst’ with regard to a specific performance requirement, but may not reflect performance in the conditions of actual service. This is particularly the case for complex products where a number of materials are used in combinations, for example in some cladding panel and roofing systems. Even an external wall in a timber framed building may well comprise a brick and mortar outer leaf, a timber frame held together with nails or metal fixings, a polymeric dampproof membrane, polymeric foam or fibre based insulation, plasterboard inner facing coated with a skim of plaster and a coating of paint. The performance of the various components when tested in isolation may well be very different to that when tested together as a wall.
- There is an inbuilt presumption in the CPR against testing with the presumption that testing is costly. Other ways of demonstrating conformity are allowed, for example self-declaration by manufacturers and by inspection. A study by The European Federation of National Associations of Measurement, Testing and Analytical Laboratories (EUROLAB aisbl) in 2013 calculated that third party testing added less than 2% to the overall cost of placing a product on the European market. Research undertaken by the International Confederation of Inspection and Certification Organisations (CEOC) and The International Federation of Inspection Agencies (IFIA) in 2015 and 2016 showed 16% of dangerous faults in self-declared non-compliant consumer products on the European market compared with less than 1% in those products which had undergone third party testing.
Establishing roles and responsibilities:
Q 8.1 Do you agree with the approach of an ‘inventory list’ to identify relevant construction products to be captured by the proposed new regulatory regime?
- It is clearly pragmatic that those products which are regulated by the CPR should continue to be so through the UK Regulations of 2013. If the UK leaves the EU then there would be the opportunity of rectifying the shortcomings of the CPR described above in the fullness of time. The CPR does not cover all products used in buildings nor of assemblies of materials and this should be redressed. Clearly it makes sense to first include on the list products which are safety critical, but durability, environmental impact, internal environment and air quality, sustainability and overall fitness for purpose are all properties that should be taken into consideration. There is not much to be gained by including products just on safety grounds if they are also harmful to the environment or will accelerate climate change. The current proposal is to concentrate on products for which (national) standards already exist and again this is both pragmatic and sensible. Standards take a long time to develop. An important consideration will be to develop standards for materials in use in combinations and assemblies reflecting actual ‘in use’ conditions.
Q 8.2 Do you agree that an inventory list should begin with including those products with standards advised in Approved Documents?
- The short answer is yes for reasons explained in our answer to Q 8.1 above. It is pragmatic, given the huge number of products that can be used in buildings of different types. It is sensible to begin with those that are already recognised or for which standards already exist. We note and welcome the proposal in paragraph 337 to set up a Standards Committee to advise the Secretary of State. It will be important to ensure that any new regulatory system does not stifle innovation. This could prove detrimental to the uptake of sustainable buildings in the future. Some of the construction products and materials widely used today simply did not exist sixty years ago, for example polymeric sealants which have largely replaced putty, PVA glues, and mineral wool insulation. An over burdensome regulatory regime could be a brake on adoption of new materials and construction methods. 4
Q 8.4 Do you agree with the proposed approach to requirements for construction products caught in the new regulatory regime?
- Yes. Clear, unambiguous labelling and clear, authoritative Declarations of Performance are essential for the regulatory approach to succeed. EUROLAB, CEOC and IFIA have established that across the EU the CE mark is widely misunderstood. Most members of the public and some professionals regard it as a safety mark, and that construction products bearing it are intrinsically safe. Supporting documentation on construction products such as that in the Approved Documents and in Agrément certificates has been criticised as being opaque and difficult to understand even by construction professionals. Labels should be easy to read and understand by workers on building and construction sites. Declarations of Performance should be written in language that, albeit necessarily technical, can still be understood by the intelligent layman. One should not have to be an architect to understand the uses, limitations and performance of a construction product.
- We strongly endorse the proposal in the third bullet of paragraph 344 that product manufacturers should have in place systems to ensure that the products they manufacture consistently meet the claimed performance. This in our view should be based on independent thirdparty testing to ensure impartial evidence of performance and conformity. This we feel sure will drive up product quality and reliability.
18. Q 8.6 Do you agree with the proposed functions for a national regulator for construction products?
- Yes. Construction products could be considered to be a special subset of consumer products in general in that the end user is the public in the form of the building owner or buyer. Their safety and fitness for purpose are paramount and their manufacture and sale makes a significant contribution to the construction sector and the wider economy as a whole. Just as there are national regulators for weights and measures, food safety, medical devices and blood products it makes sense for there to be a single national regulator for all construction products including those already regulated under the Construction Products Regulation and those in the proposed inventory list as well as any that might be covered by the General Product Safety Regulations 2005. Oversight by a single body would be advisable as the alternative of regulation through different bodies and Government Departments would in our view lead to confusion, lack of clarity for the regulated, territorial disputes between regulators and would add cost by duplication of facilities and staff.
- We strongly support the proposal that The Office of Product Safety and Standards (OPS&S) takes over responsibility for regulation of Construction Products. This organisation already has experience and capabilities in regulation of consumer products and weights and measures. It also has in house test facilities and experts with considerable expertise in product testing. We appreciate that it would need some considerable additional resources to take on this expanded role but there is a solid base to build on and other options could be less effective and make less efficient use of resources available. Some of the additional product testing requirement might be contracted out by OPS & S to UKAS accredited test laboratories although in this case care would be needed in selection of test laboratories to avoid conflicts of interest from testing for both construction product manufacturer and for the regulator.
- We note the constraints on market surveillance. Resources for Local Authority Trading Standards Departments have been steadily reduced over the years by successive governments. This would need to be reversed in order for Trading Standards Departments to take on the additional functions effectively. Yet Trading Standards Officers have the requisite skills and experience for undertaking regulatory enforcement so would be the natural choice. The use of Distributed Ledger Technology (DLT or ‘Block chain’) may have an important role in reducing the need for feet on the ground and should be explored. 5
Q 8.9 Do you agree with the powers and duties set out in paragraph 350 to be taken forward by a national regulator for construction products?
- Yes. Please see answer to Q 8.6 above.
22. Q 8.11 Do you agree with the proposed requirements in paragraph 354 for the umbrella minimum standard?
- Yes. We strongly endorse the proposal in the first bullet point that products should be retested at random to ensure effective market surveillance and to reduce the likelihood of defective, substandard, counterfeit or unsafe construction products being sold.