The UK government is planning to allow business and industry more time to implement new post-Brexit chemicals safety regulations which have been fiercely criticised by manufacturing and business associations. The decision comes following sustained pressure from industry since Brexit officially took place on 31 January 2020. In February 2021, a letter was sent to the government signed by 25 business leaders calling for a radical rethink of plans to establish a new UK chemicals safety database, which they warned would cost as much as £1 billion (€1.17 billion) to implement.
In a letter sent to the lobby group, the Chemicals Industries Association (CIA), environment secretary George Eustice said that the government was “minded” to extend the cut-off date for registrations for the new database to October 2025. The extension is the latest in a series of delays to post-Brexit plans, many of which replicate existing EU safety standards. In March, plans to introduce full border checks with the EU were delayed by six months to January 2022, and in August the deadline to adopt the UKCA safety and quality mark for UK goods after Brexit was pushed back by one year to January 2023.
Under the original plans for chemicals, companies were given until October 28 this year to provide basic registrations for chemical substances with a new “UK Reach” database, essentially duplicating the EU Reach database run by the EU Chemicals Agency. They were then given until October 27 2023 to provide supporting safety data for chemicals, a demand which the industry warned in February would be an expensive duplication of existing EU safety data and could lead to “additional and repetitive animal testing”.
In his letter, Eustice said that the government was “currently minded to extend the 27 Oct 2023 deadline to 27 Oct 2025” and would also consult on “what, if any, extensions of the other deadlines would be appropriate.” He also said that “a new model” for UK Reach registrations would be explored, with an aim to “reduce the need for replicating EU Reach data packages” – one of industry’s key demands. The move has been welcomed by the industrial sector. CIA CEO Steve Elliot said the group was pleased that there was an acknowledgement by the government of the “huge cost implications” arising from UK Reach, and that “an alternative way forward is now being considered”.
A clear, efficient UK Reach system remains critical for many manufacturers to be successful. However, environmental pressure groups seem more critical about the move. More than 20 organisations in Britain, including the CHEM Trust and Breast Cancer UK, warned the UK Government against watering down post-Brexit environmental regulations. Breast Cancer chief executive Thalie Martini said in spring: “Reduced requirements for the provision of safety data on chemicals weakens the Health and Safety Executive’s ability to protect public health and risks harmful chemicals entering the UK market.” Zoe Avison, from the Green Alliance, said future proposals should require companies to “continue to provide safety information” if they want continued access to the market.
Watering Down of Requirements Creates Fear
The watering down of the regulatory requirements on key chemicals is what experts fear could be the first move to a weaker post-Brexit safety regime for potentially toxic substances. Proposals published without fanfare on a government website set out some of the intended new rules for the new post-Brexit national chemicals regulator. The proposals would change the way “substances of very high concern” – which include potential toxins and carcinogens, and chemicals that persist for a long time in the environment – are dealt with.
Under EU law, these chemicals are formally identified and publicly listed on a “candidate list”, while authorities analyse them and decide whether to ban them or allow their use in certain circumstances, by transferring them to an “authorisation list”. Companies must inform regulators and their supply chains when dealing with products containing these candidate list chemicals, encouraging them to use alternatives.
Under the government’s proposals, companies will not be obliged to submit information on “substances of very high concern”, but will be allowed to do so on a voluntary basis. Only chemicals likely to be transferred to the “authorisation list” would be listed on the “candidate list”, meaning a smaller number of notifiable chemicals will be analysed. Zoe Avison, policy analyst at the Green Alliance thinktank, said: “Relying on voluntary data submissions by chemical companies will almost certainly see hazardous substances falling through the cracks. The UK could have made sensible arrangements to reduce costs for industry and safeguard public health. Yet the government has boxed itself into a corner. After the new delay for companies to submit safety data for the UK market, this is a very worrying sign for the future of chemical regulation in the UK.”
It seems that the government is putting in unnecessary layers of information requirements before taking action, which will lead to regulatory inaction on a range of harmful substances. This will open the door to British consumers and the environment having greater exposure to harmful chemicals than in the EU, and second-rate system for regulating chemicals post-Brexit. Jamie Page, of the Cancer Prevention and Education Society, added: “We are concerned that protections that British citizens previously enjoyed are now being eroded. The more the UK diverges from the EU Reach [registration, evaluation, authorisation and restriction of chemicals] system and database, the more likely people are to be exposed to potentially hazardous chemicals.”
Pesticides
There is a fear that the government is considering using its new Brexit regulatory freedom to allow pesticides banned in the EU on food imported to the UK. Brussels announced it was banning 10 pesticides on imported fruit and veg in February last year and the UK was at the time widely expected in to follow suit. But over a year later the Department for Environment, Food, and Rural Affairs (Defra) says no decision has yet been made on whether Britain will follow the EU or continue to permit the chemicals on food. All the pesticides have not been allowed for use by domestic farmers in either the UK or EU for some years, but were still allowed for imports from outside the bloc subject to “maximum residue levels” checked by border staff.
But last year Brussels regulation 2021/155 cut the maximum residue levels (MRLs) for all the chemicals to the lowest possible level allowed under EU law – effectively banning their use on food destined for the continent. The change was announced by the European Commission in February 2021 and took effect in September last year, but the UK has not yet decided whether to follow suit for most of the chemicals.
UK REACH Regime
REACH is an example of EU legislation that is not straightforward to copy across into UK law. This is because the regulation relies on the integrated role of the ECHA and is closely tied to the single market. REACH is a regulatory requirement for trade that impacts many UK manufacturing sectors that rely on chemicals. Manufacturing industries often have complex supply chains with chemicals crossing UK-EU borders many times.
Following the UK’s withdrawal from the EU on 31 January 2020, REACH continued to have effect in the UK until the end of the transition period in accordance with the Withdrawal Agreement. The Health and Safety Executive (HSE), however, no longer participated in ECHA decision making during this time. The UK Government stated that the UK would not participate in the ECHA or the EU regulatory framework for chemicals after the transition period. EU REACH ceased to have effect in Great Britain from 1 January 2021. The Government has put in place a separate UK REACH regime that applies to businesses that import, make, sell or distribute chemicals in Great Britain, whether as raw materials or in their finished state.
REACH, and other chemicals regulations, were retained in domestic legislation at the end of the transition period via the European Union (Withdrawal) Act 2018. Secondary legislation has also been passed that would amend REACH in the UK to make it work in a UK-only context from that point. The UK REACH Regime was initially designed to establish a UK-wide market for chemicals applying to all chemical substances manufactured and imported into the UK, with the Health and Safety Executive (HSE) established as the UK REACH Competent Agency, taking over the functions of the ECHA. Under the Northern Ireland Protocol, however, the EU REACH Regulation will continue to apply to Northern Ireland after the end of the transition period, while UK REACH will regulate the access of substances to the market in Great Britain, as set out in the REACH.
The Government says that the proposed UK REACH regime replicates the EU system as closely as possible, maintaining the fundamental aims and purposes of REACH including high standards of health and environmental protection. Industry and environmental stakeholders, however, have raised concerns that the UK REACH regime will be costly for industry and lacks transparency.
CHEM Trust
Many believe that the GB regime will be considerably weaker than and less protective of human health and the environment than the system it is replacing, with greater potential for deregulation. Although any regression that might secure a competitive advantage for the UK could affect its future trade with the EU, under the non-regression and rebalancing provisions of the EU-UK Trade and Cooperation Agreement.
There are a number of structural and other reasons why GB REACH will not be able to meaningfully replicate EU REACH.
Firstly, CHEM Trust has serious concerns about the capacity, resources available to, experience and expertise of personnel at Health and Safety Executive to replicate the functions of the European Chemicals Agency in such a complex field. ECHA has an annual budget of approximately €100million for REACH and 400 staff. There are over 22,900 substances registered within it. The HSE is expected to regulate a similar number of chemicals, but with a fraction of the budget and workforce.
Secondly, REACH is not just a list of rules, but a governance mechanism that would be difficult to replicate on a national basis. It offers value for money through the sharing of resources, expertise and workload across EU countries. Duplication of work is avoided through the co-ordination of those countries’ activities on risk assessment and data sharing avoids unnecessary animal testing. On the basis of current plans, the UK regime will lack institutional mechanisms to ensure meaningful stakeholder engagement and transparent decision-making. This will result in a more closed and less transparent system than ECHA’s, that is likely to be more susceptible to industry lobbying. In comparison, decisions under EU REACH are made by committees of experts from EU Member States (such as the Committees for Risk Assessment and the Committee for Socio-Economic Analysis), rather than by staff in ECHA.
The committee structure helps to ensure its work can be challenged and the best information is available for these discussions, helping to avoid mistakes and to ensure that decisions are made more independently and transparently. National regulation is also more limited when economic interests are at play. It has been found that EU countries generally propose chemicals for ECHA’s Candidate List as a “Substance of Very High Concern” (SVHC), when that chemical does not play an important economic role within its own borders.
Thirdly, the UK’s database of chemicals safety and use information will essentially be empty on day one of the new system. Registered chemicals will then be listed, with companies required to provide safety data staggered over a period of 6 years from 28 October 2021. The loss of access to the EU’s chemical safety database and the lack of information in the UK’s database would render the UK system hollow; it will be difficult for the regulator to implement legally enforceable controls on chemicals.
Biggest Fear
Regardless of the deadline extension, if the UK fails to match action in Europe on product chemical restrictions, there is a very real risk it could encourage unscrupulous manufacturers to dump products on the UK market that fail to meet EU regulations. That would push the UK back many years in health and environmental safety.
