Consumer Protection PART 1 GENERAL Citation and Commencement 1 These Regulations may be cited as the Aerosol Dispensers Regulations 2009 and shall come into force on 29th April 2010. Interpretation 2 1 In these Regulations— “ aerosol dispenser ” means any non-reusable container made of metal, glass or plastic and containing a gas compressed, liquefied or dissolved under pressure, with or without a liquid, paste or powder, and fitted with a release device allowing the contents to be ejected as solid or liquid particles in suspension in a gas, as a foam, paste or powder or in a liquid state; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Directive” means Council Directive 75/324/EEC on the approximation of the laws of the Member States relating to aerosol dispensers; “ relevant aerosol dispenser ” means an aerosol dispenser which does not have a maximum capacity of— less than 50ml; or greater than that specified— in point 3.1 of Schedule 1A, in relation to metal aerosol dispensers (1000ml); in point 4.1.1 of Schedule 1A, in relation to aerosol dispensers with plastic coated or permanently protected glass containers or plastic aerosol dispensers which cannot splinter on bursting (220ml); or in point 4.2.1 of Schedule 1A, in relation to aerosol dispensers with unprotected glass containers or plastic aerosol dispensers which may splinter on bursting (150ml) ; “ UK marking ” means the marking in the form set out in Annex 2 of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 . 1A Schedule 1A reproduces the provisions of the Annex to the Directive with amendments to correct deficiencies in assimilated law. 1B A reference to a provision of Schedule 1A is a reference to the equivalent provision of the Annex to the Directive as set out in that Schedule. 2 The reference in regulation 3(7)(c)(ii) and (iii) to the test method specified in point 6.1.4.1(b) and (c) of Schedule 1A is a reference to a test method specified in point 6.1.4.1(b) or (c) which is — a a test method approved under point 6.1.4.3(a) of the Annex to the Directive , when these Regulations are made unless paragraph (3) applies and where in relation to that test method the other conditions in point 6.1.4.3 of that Annex are satisfied; or b such other test method which has been approved in writing by the Secretary of State for the purposes of these Regulations and where in relation to that test method the conditions in point 6.1.4.3 of Schedule 1A are satisfied. 3 This paragraph applies where the Secretary of State has specified in writing that a test method which is approved under point 6.1.4.3(a) of the Annex to the Directive when these Regulations are made, is not approved for the purposes of these Regulations. Requirements for the marking of aerosol dispensers 3 1 Paragraphs (2) to (8) set out the requirements which must be complied with under regulation 5 in order to mark an aerosol dispenser or where paragraph (1A) applies, on a label affixed to, or a document accompanying, the aerosol dispenser with the UK marking . 1A For a period of seven years beginning with IP completion day, the UK marking may be affixed to— a a label affixed to the aerosol dispenser; or b a document accompanying the aerosol dispenser. 2 The aerosol dispenser is a relevant aerosol dispenser. 3 The person responsible for the marketing of the aerosol dispenser has complied with the obligations set out after the heading to point 2 (general provisions) and immediately before point 2.1 of Schedule 1A . 4 The aerosol dispenser complies with the general provisions relating to construction set out in point 2.1 of Schedule 1A . 5 The aerosol dispenser complies with the provision relating to the volume of the liquid phase set out in point 2.3 of Schedule 1A . 6 The aerosol dispenser complies with the special provisions set out in points 3, 4 and 5 of Schedule 1A in the case of metal, glass and plastic dispensers respectively. 7 The aerosol dispenser— a meets the test specified in point 6.1.1 of Schedule 1A in the case of empty containers; b meets the tests specified in point 6.1.2 and 6.1.3 of Schedule 1A in the case of empty metal and protected glass dispensers respectively; and c satisfies one of the following subparagraphs— i it meets the test method specified in point 6.1.4.1(a) of Schedule 1A and the dispenser is not of a type referred to in point 6.1.4.2 of that Schedule ; ii it meets the test method specified in point 6.1.4.1(b) of Schedule 1A and the dispenser is not of a type referred to in point 6.1.4.2 of that Schedule ; iii it meets the test method specified in point 6.1.4.1(c) of Schedule 1A . 8 Unless paragraph (9) applies, the aerosol dispenser is marked in characters which are visible, legible, indelible and (unless it is unlikely that the dispenser will be used in the United Kingdom) in the English language, with— a the following information— i the name and address or trade mark of the person responsible for marketing the aerosol dispenser; ii code markings enabling the filling batch to be identified; iii the details referred to in point 2.2 of Schedule 1A; and iv where an aerosol dispenser— aa contains flammable components as defined in point 1.8 of Schedule 1A; and bb is not classified as extremely flammable or flammable in accordance with the classifications set out in point 1.9 of Schedule 1A; the quantity of flammable material contained in the aerosol dispenser must be clearly stated on the label in legible and indelible wording in the following form—“X % by mass of the contents are flammable”; b the net contents by volume expressed in metric units; and c if the person responsible for marketing the dispenser sees fit, the net contents by weight expressed in metric units. 9 This paragraph applies where— a the capacity of the dispenser does not exceed 150ml; b the dispenser is too small to be marked with the information referred to in paragraph (8); and c that information is marked on a label attached to the dispenser. Power to amend Schedule 1A 3A 1 The Secretary of State may by regulations amend Schedule 1A where the Secretary of State considers it necessary to do so in order to take technical progress into account. 2 The power to make regulations made under paragraph (1) includes power— a to make different provisions for different cases; and b to make such supplemental, consequential and transitional provisions as the Secretary of State considers appropriate. 3 Regulations made under this regulation are to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. PART 2 PROHIBITIONS Prohibition of sale or supply of unmarked relevant aerosol dispensers 4 1 Subject to paragraph (2), a person shall not supply or have in his possession for supply a relevant aerosol dispenser which is not marked with the UK marking or the symbol “3” (inverted epsilon). 2 Where regulation 3(1A) applies, paragraph (1) does not apply where the UK marking is affixed to— a a label affixed to the aerosol dispenser; or b a document accompanying the aerosol dispenser. Prohibition of sale or supply of non-compliant marked aerosol dispensers 5 A person shall not supply or have in his possession for supply— a an aerosol dispenser which— i is marked with the UK marking where all the requirements referred to in regulation 3 relating to that aerosol dispenser are not complied with; ia has a label affixed to it, or a document accompanying it, which is marked with the UK marking, where— aa the requirements of regulation 3 are not complied with; or bb the requirements of regulation 3 are complied with but the period referred to in regulation 3(1A) has elapsed; or ii is marked with the symbol “3” (inverted epsilon) where either— aa all the requirements of regulation 5A(3) are not complied with; or bb all the requirements of regulation 5B are not complied with; or b an aerosol dispenser which— i is marked with a mark so closely resembling the UK marking or the symbol “3” (inverted epsilon) as to be likely to deceive; or ii has a label affixed to it or a document accompanying it which is marked with a mark so closely resembling the UK marking as to be likely to deceive. Obligations that are met by complying with obligations in the Directive 5A 1 In this regulation any reference to an Article or an Annex is a reference to an Article or an Annex of the Directive. 2 Paragraph (5) sets out the requirements which must be complied with in order to mark an aerosol dispenser with the UK marking. 3 Paragraphs (5) and (6) set out the requirements which must be complied with under regulation 5(a)(ii)(aa) in order to mark an aerosol dispenser with the symbol “ 3 ” (inverted epsilon). 4 Where the requirements in paragraph (5) are complied with— a the requirements of regulation 3(1) are disapplied; b the requirements of regulation 3(2) to (7) are treated as being satisfied; c the reference in regulation 5(a)(i) to regulation 3 is to be read as a reference to paragraph (5) and regulation 3(8) and (9). 5 The requirements referred to in paragraphs (2) and (3) are that— a the aerosol dispenser is a relevant aerosol dispenser; b the relevant aerosol dispenser— i complies with the provisions relating to construction and equipment set out in point 2.1 of the Annex; ii complies with the provisions relating to the volume of the liquid phase set out in point 2.3 of the Annex; iii complies with the special provision set out in points 3, 4 and 5 of the Annex in the case of metal, glass and plastic dispensers respectively; iv meets the tests specified in point 6.1.1 of the Annex in the case of empty containers; v meets the test specified in point 6.1.2 and 6.1.3 of the Annex in the case of empty metal and protected glass dispensers respectively; and vi satisfies one of the following paragraphs— aa it meets the test methods specified in point 6.1.4.1(a) of the Annex and the dispenser is not of a type referred to in point 6.1.4.2 of the Annex; bb it meets the test method specified in point 6.1.4.1(b) of the Annex and the dispenser is not of a type referred to in point 6.1.4.2 of the Annex; cc it meets the test method specified in point 6.1.4.1(c) of the Annex; c the person responsible for the marketing of the relevant aerosol dispenser has complied with the obligations set out after the heading to point 2 (general provisions) and immediately before point 2.1 in the Annex. 6 The requirements referred to in paragraph (3) are that— a the relevant aerosol dispenser— i complies with the requirements of Article 8(1) (or where permitted by that Article, its label complies with those requirements); ii complies with the requirements of Article 8(1a); iii bears, or where permitted by Article 8(1), has on its label the information required by Article 8(1)(d) and 8(1a) prepared in or translated into English; and b the person responsible for the marketing of the relevant aerosol dispenser has affixed the symbol “ 3 ” (inverted epsilon) in accordance with Article 3. Qualifying Northern Ireland Goods 5B 1 Paragraph (2) sets out the requirements that must be complied with under regulation 5(a)(ii)(bb) to mark an aerosol dispenser with the symbol “3” (inverted epsilon); 2 The requirements referred to in paragraph (1) are that— a the requirements of regulation 3 as it applies in Northern Ireland have been complied with in relation to the aerosol dispenser; and b the aerosol dispenser is qualifying Northern Ireland goods. 3 In this regulation “ qualifying Northern Ireland goods ” has the meaning given to it in in regulations made under section 8C(6) of the European Union (Withdrawal) Act 2018. PART 3 SUPPLEMENTARY Contravention of these Regulations 6 1 For the purposes of the Consumer Protection Act 1987 these Regulations, with the exception of regulation 3(8)(b) and (c), are safety regulations made under section 11 of that Act. 2 Regulation 3(8)(b), which is not made under that Act, shall be treated as if it was a safety regulation made for all purposes under section 11 of that Act. 3 Notwithstanding section 12(5) of the Consumer Protection Act 1987 any person guilty of an offence under that section of contravening the prohibition in regulation 5(a) by reason only of a failure to comply with regulation 3(8)(b) shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale or to a term of imprisonment not exceeding 3 months or both. Amendments 7 Subject to regulation 8, the Schedule (which contains revocations and an amendment) shall have effect. Transitional provision 8 1 Regulations 4 and 5(a) do not prohibit the supply of, or possession for supply of, an aerosol dispenser which, before 29th April 2010, was marked with the reversed epsilon marking in accordance with the provisions of the Aerosol Dispensers (EEC Requirements) Regulations 1977 . 2 Paragraph (1) does not apply after 28th October 2010. Review 9 1 The Secretary of State must from time to time— a carry out a review of the regulatory provisions contained in these Regulations, and b publish a report setting out the conclusions of the review. 2 The first report must be published before 12th February 2023. 3 Subsequent reports must be published at intervals not exceeding 5 years. 4 Section 30(3) of the Small Business, Enterprise and Employment Act 2015 (“the 2015 Act”) requires that a review carried out under this regulation must, so far as is reasonable, have regard to how the Directive is implemented in other member States. 5 Section 30(4) of the 2015 Act requires that a report published under this regulation must, in particular— a set out the objectives intended to be achieved by the regulatory provision referred to in sub-paragraph (1)(a), b assess the extent to which those objectives are achieved, c assess whether those objectives remain appropriate, and d if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision. 6 In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the 2015 Act (see section 32 of that Act). Kevin Brennan Minister for Further Education, Skills, Apprenticeships and Consumer Affairs Department for Business, Innovation & Skills