HARDWARE & SECURITY
Own branding: Know your
legal responsibilities
Written by Douglas Masterson B.A.(Hons) DipGAI RegAI MinstAI, GAI technical manager.
» MANY HARDWARE AND SECURITY
businesses rebrand products from
manufacturers under their own brand
name. This process is commonly
known as ‘own branding’, but is also
known as ‘rebranding’ by the European
Commission and CEN.
However, many companies are unaware
of the legal implications of this process.
In November 2017, a guidance document
was released by the Group of Notified
Bodies, then in November 2019 the Group
issued further Approved Guidance and
this article will outline its implications…
The notified body certificate
and rebranding
Currently, a notified body certificate
covers only construction products placed
on the market by the original certificate
holder. This is the organisation to whom the
certificate is issued and their brand. It does
not relate to the rebrand (even though it
may be exactly the same product).
Therefore, the physical manufacturer
cannot refer to a notified body certificate
for products that are supplied for the
purpose of rebranding. In addition, a
rebranding manufacturer cannot in their
Declaration of Performance (DoP) or
a CE marking make reference to the
notified body that issued a certificate to
the physical producer for construction
products under AVCP systems 1+, 1, or 2+.
The legal implications of
rebranding in practice
Rebranding/own branding may take
many different forms. For the sake
of simplicity, the Approved Guidance
describes only one single basic rebranding
scenario:
For all practical purposes, except for
the tradenames and markings, products
A and B are identical. They are produced
in the same factory, from the same raw
materials, to the same specifications,
using the same machinery, under the
same Factory Production Control.
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Product A is placed on the market by
Company A (in capacity of manufacturer),
while Product B is placed on the market
by Company B (in capacity of rebranding
manufacturer).
Most importantly, in legal terms
Company A would be the manufacturer
of Product A, while Company B (through
the process of placing it on the market
under their own brand) would be the
manufacturer of Product B. CPR Article
15 also makes it clear that Company B
would be subject to all obligations of a
manufacturer as defined by Construction
Products Regulation (CPR).
These include:
• Draw up technical documentation
describing all the relevant elements
related to the required system of
AVCP (Assessment and Verification
of Constancy of Performance).
• Keep the technical documentation
and the Declaration of Performance
(DoP) for a period of at least 10
years.
• Ensure that procedures are
in place to ensure that series
production maintains the declared
performance.
• Where deemed appropriate, carry
out sample testing of construction
products placed or made available
on the market.
• Investigate, and if necessary, keep
a register of complaints and of non-
conforming products.
• On request from a national authority,
provide it with all the information
and documentation necessary to
demonstrate the conformity of
the construction product with the
declaration of performance.
To enable itself to meet these
obligations, Company B will need
a contract with company A. As the
contract will regulate the assessment of
performance as well as the verification
of constancy of performance of Product
B, notably the factory production
control, that contract will be of interest
to the notified certification body serving
Company B.
The role of the notified
certification body
If Product A is in AVCP system 1+,
1, or 2+, Company A would need to
contract a notified certification body.
That certification body would have a
role in the AVCP for Product A, of which
Company A is the manufacturer. The
notified certification body contracted
by Company A would not have any
relationship with Company B and no role
in the AVCP for Product B.
Equally, when Company B contracts
a notified certification body, that body
would assume the role of notified body
in relation to Product B only and they
would have no role in relation to Product
A.
To enable Company B to meet its
obligations, an agreement would be
necessary between companies A and B.
Moreover, to avoid repetition of notified
body work, additional agreements
would be necessary. This would include
subcontracting which can only happen
with the agreement of the manufacturer.
As part of this, Company A will need
to release its Certified Body from its
secrecy obligation and permit it to share
relevant information with the Certified
Body employed by Company B.
Processes including assessment of
performance, verification of technical
documentation and continuing
surveillance must all be carried out by
the notified bodies.
www.gai.org.uk
MAR/APR 2020
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