EU Regulation No. 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals ('EU REACH'), governing the regulation of chemicals within the EU single market for the protection of human health and the environment, is one of the most complex legislative instruments ever created by the EU, and it has long been accepted by UK government that re-creating the regime within UK law is far from straightforward.
We published an article in January outlining how legislation published by the government (the REACH (etc.) (Amendment etc.) (EU Exit) Regulations 2019 ('the UK REACH SI')) helped to provide a clearer picture of how chemical regulations would work after Brexit, including the creation of a 'UK REACH' and a UK chemicals agency.
Since then, the UK REACH SI has passed through the Houses of Parliament and will become law on ‘exit day’. The approval of the UK REACH SI did not occur without issue and, indeed, only passed through the House of Lords by 214 votes to 202 with many feeling that the UK REACH SI is not fit for purpose.
DEFRA has now published a draft amendment to the Regulations (the REACH etc. (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 (‘the UK REACH Amendment SI’)) which seeks to address some of the perceived issues.
In this short briefing note we provide our initial thoughts on the UK REACH Amendment SI, beginning with a summary of when, if and how the UK REACH SI and UK REACH Amendment SI (together, the ‘UK REACH Regulations’) might come into force.
Brexit
The creation of a UK REACH will depend when, how and even if the UK leaves the EU. Should the UK leave the EU with no deal the UK REACH will come into force automatically. If the UK proceeds under the Prime Minister’s Withdrawal Agreement (or something similar), there will most likely be a need for a UK REACH and a UK chemicals agency after the transition, and so the current legislation provides some indication of what this will look like. Even if the UK were to remain in the common market (the ‘Norway +’ model) or indeed stay within the EU (the ‘no Brexit’ model) and therefore continue to participate in EU REACH (making the UK REACH Regulations redundant), it's prudent to at least plan for a UK REACH, and so we recommend paying close attention to the UK REACH Regulations.
What is the purpose of the UK REACH Amendment SI?
UK businesses that purchase chemicals from entities based in the EU-27 may become importers under UK REACH. The UK REACH SI provides transitional support to those companies through an interim notification system, allowing UK companies to be able to continue buying substances from the EEA without interruption after leaving the EU. However, under the notification system, those importing chemicals from the EEA will need to submit basic data on the company and on the safe use of the substances within 180 days. Full registration is then required within two years (providing time for companies to renegotiate access to data from EU partners).
Since the UK REACH SI was laid, representations have been made by industry to DEFRA outlining industry’s concerns about how the transitional provisions would function. In particular, industry highlighted the following two situations as potential issues under the UK REACH SI:
- where a chemical is registered under EU REACH by an EEA-based only representative but is imported directly into the UK from outside the EEA
- where an EEA manufacturer, formulator or producer of articles appoints a UK-based only representative to register on their behalf.
The transitional arrangements in respect of these two situations are the focus of amendments made under the UK REACH Amendment SI and are outlined in more detail more.
Importation directly into the UK from outside the EEA
While the transitional provisions under the UK REACH SI covered most situations, they did not cover the situation where a chemical is registered by an EEA-based only representative but is imported directly into the UK from outside the EEA. As currently drafted, these importers would not benefit from the transitional provisions and would need to register under UK REACH before continuing to import the chemical.
The revised provision in the UK REACH Amendment SI brings these importers within the scope of the transitional provisions. This fulfils the intention that all chemicals registered under EU REACH should be able to access the UK market after exit through the transitional provisions, either by being transferred directly into the UK REACH system in the case of UK-held registrations, or through the notification arrangements.
Transitional notifications by a UK-based only representative
Under EU REACH, an EEA manufacturer, formulator or producer of articles can appoint a UK-based only representative to register a chemical on their behalf. However, the UK REACH SI did not allow for a UK-based only representative to carry out the transitional notification.
The UK REACH Amendment SI corrects this issue so that a UK-based only representative can complete the notification, thus reducing the burden on importers and avoiding unnecessary duplication by importers and only representatives.
In order for the notification system to work most effectively, a UK-based only representative will need to be provided with access to information about the handling and use of chemicals to complete the notification. The UK REACH Amendment SI requires that this information is provided to only representatives with the hope being that this will result in the HSE receiving more accurate information, contributing to the effective management of chemicals in the UK.
Next developments
The amendments set to be made to the UK REACH SI through the UK REACH Amendment SI illustrate just how complicated the creation of a UK REACH and a UK chemicals agency will be. Government will need to remain attuned to the issues and concerns raised by industry and, consequently, we expect more amendments and revision going forwards.
How can Burges Salmon help?
Our market leading REACH, chemicals and product stewardship team has significant experience in the UK and the EU on chemicals and products regulation. We are advising clients on bespoke Brexit strategies dependent on the objectives and ambitions of each client’s business. If you are interested in discussing these issues further please contact us.