REACH, the EU Regulation for the Registration, Evaluation, Authorisation and Restriction of Chemicals, is far from new. REACH came into force in 2007 with a phased implementation of the registration obligations over the next decade. The final registration deadline expired at the end of May 2018. Going forward, if substances are not registered, it is not lawful for companies to import, use or supply them. This means that the presence of any unregistered substances in your supply chain will likely cause disruption, and may even lead to criminal prosecution. After many years of a ‘softly, softly’ approach to enforcement during the phase-in period, in 2019 – the first full year post the registration deadlines – we are likely to see enforcement authorities step up efforts to ensure compliance.
Recent UK enforcement activity
It’s not unusual for those involved in chemicals regulation to complain that enforcement is too soft and 'free-riders' continue to access the market without paying their fair share and therefore gaining a competitive advantage. Whatever the truth behind that perception, it’s not correct to say that there is no enforcement action, and when it bites, it’s a regime with teeth, as demonstrated by a recent UK case.
On January 7 2019, the owner and director of a cleaning services firm was jailed for 10 months for the unlawful sale of prohibited substances. Following investigations by the Health and Safety Executive (HSE), it transpired that the company was selling paint stripper containing toxic dichloromethane, a suspected carcinogen. REACH has restricted the use of that substance within paint strippers to no more than 0.1% (with certain exceptions) since 2010. The company had also failed to verify with its supply chain whether the product was being used for industrial purposes or being used by certified professionals, both of which are conditions of sale.
Speaking in relation to the case, the HSE has made clear that companies should be aware that it will take robust action against those who unnecessarily put the lives of workers and the public at risk, and against those who endanger the environment, through the inappropriate supply and use of chemicals.
Enforcement across the EU
The European Chemicals Agency (ECHA) has announced that enforcement authorities across the EU, working together with customs authorities, will be checking the compliance of importers and manufacturers with REACH registration obligations as part of an EU-wide enforcement project. The inspections will cover:
- Imported and manufactured substances in all tonnage bands, although the main focus will be substances imported or manufactured in quantities of 1-100 tonnes per year;
- The registration dossier and other duties related to registration, for example, whether the registrant is compliant with the duty to update its dossier;
- Whether substances registered as intermediates meet the definition of intermediates and are manufactured and used correctly; and
- Substances registered as monomers in polymers.
These inspection activities will continue throughout 2019. A report on the results of the inspections will be available in the fourth quarter of 2020.
UK REACH?
January 2019 saw the publication of a statutory instrument that would create a 'UK REACH' and a UK chemicals agency after Brexit. For our full analysis of that topic, please click here.
UK government has accepted that the introduction of a new UK REACH regime may result in 'significant costs' for businesses. In light of that reality, compliant businesses will surely demand that non-compliant competitors do not benefit from any disruption caused by the implementation of the new regime. Market confidence can only be maintained through a meaningful enforcement agenda and a clear demonstration that there is a level playing field. That may well drive high-profile enforcement.
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. We recommend that all UK chemicals businesses carry out a thorough review of the rights of access to data required and that all businesses – both in the chemicals sector and beyond – perform an analysis of the supply chain risks for the chemicals they use. If you are interested in discussing these issues further please contact Michael Barlow or your usual Burges Salmon contact.