By Malik Duhaut
While Brexit is in the mind of all policy makers in Brussels and national capitals, businesses are still in the process of mitigating, if not understanding, potential risks for their supply chain and how the future UK regulatory framework will look like.
The UK tried to clarify the picture for the chemical sector in a guidance document entitled “Regulating chemicals (REACH) if there is no Brexit deal”. This guidance is part of the series of technical notices to allow businesses to understand what they would need to do should the UK leave the EU on 29th March 2019 with no agreement on the future relationship. And while this represents a good reflective piece, it still fails to address the many challenges facing the chemical industry, but also downstream users.
On the positive side, the UK made clear that any future regulatory framework in the UK would be based on the REACH model. Current standards will be maintained and the Health and Safety Executive (HSE – Currently Member State Competent Authority for REACH in the UK) would take over the functions currently held by ECHA. The UK will build an IT system comparable to the existing ECHA systems to register substances. The Department for Environment, Food & Rural Affairs (DEFRA) will take over the European Commission’s role and regulate potential risks.
This raises already some concerns: implementing REACH was a continuous effort for the past ten years for the European Chemicals Agency and the European Commission. The European Chemicals Agency is supported by 589 members of staff, 30 people work on chemicals in DG Environment alone, and many more when counting the staff of the Member State Competent Authorities supporting ECHA and the European Commission. HSE and DEFRA would virtually mirror all activities carried by those institutions for the past 10 years and would need to substantially increase their resources and staff.
The guidance focuses mainly on registration, introducing a new notification system for importers of chemicals from the EEA, and asking all producers to develop a new registration dossier which needs to be identical to the REACH dossier. How EU producers are going to share their data, and who is going to pay for this cost is not mentioned in the guidance. Nothing is mentioned on how registration updates under REACH are going to be translated in UK-REACH, or on how new substances will be registered.
The guidance does not forget about authorisation, and all existing authorisations under REACH will be carried over in UK-REACH. Downstream users using Annex XIV substances in the UK might be relieved, but what happens after the sunset date? And what happens to Annex XIV?
Finally, it seems that DEFRA didn’t deal with the only letter missing in the REACH acronym: Restriction. 68 substances are currently restricted under REACH and while the UK insists that existing standards of protection of human health and the environment will be maintained, restrictions are not mentioned in the guidance. De facto, substances that have been restricted for many years in the UK might suddenly be allowed for use again.
In short, what happens for chemicals in the UK after Brexit is still a big question mark. This document would only apply in case of no-deal Brexit, and major consequences for the chemical industry and many downstream sectors might all depend on political discussions at the level of heads of government. So keep an eye on the big picture, the future of REACH in the UK will depend on the conclusions of the European Council meetings to come.
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November 4, 2022