Yesterday, the Financial Times reported on a joint letter from chemical and other industry associations to the Government, asking for a radical deregulation of the UK’s post-Brexit chemicals regime. Unfortunately the industry has not yet published the letter, despite this media coverage, making public scrutiny difficult, however a summary of its proposals has been tweeted out by the FT journalist here.
CHEM Trust’s view is that regulatory alignment with EU REACH, as it continues to identify the most hazardous chemicals, remains the best option for maintaining our relatively high environmental and public health standards for chemicals in the UK. It’s also worth noting that in the UK-EU Trade and Cooperation Agreement (TCA) includes provisions on Level Playing Field and Rebalancing that will limit the ability of the UK to deregulate – and will put pressure on the UK to match improvements in EU chemicals policy, like the EU’s Chemicals Strategy for Sustainability.
Given where the UK is now, a better model is the Swiss system which doesn’t require full safety data for substances already registered with EU REACH, but does have a process of largely automatic alignment with EU controls and laws on chemicals, although it remains a sovereign ‘autonomous’ regime, with the ability to deviate.
The letter reportedly proposes that the Government should deregulate GB REACH, the regulatory system that the UK government has put in place for England, Wales and Scotland post-Brexit (Northern Ireland remains in EU REACH). The deregulation would remove the obligation for industry to submit detailed safety data and instead create a weaker and slower system where industry would only provide data for substances the regulator has prioritised.
In the pre-Brexit situation the UK was protected by the EU’s world-leading chemical regulatory system – these industry groups are now proposing that the GB regulator should not have full safety data on the chemicals used in factories and products in the UK, hugely reducing protection.
A burden due to the UK’s aversion to alignment with EU decisions
The UK government and industry hoped, but failed, to win access to the EU’s REACH chemicals safety database in the TCA, which was not a surprise to us. It was always the view of CHEM Trust that the UK would not gain access to the database without, as a minimum, a commitment to align with EU chemical-related laws, and this EU precondition was confirmed by the UK Environment Secretary in Parliament last week.
The GB approach as it stands will oblige companies to submit registrations to a GB database that will be inferior to the EU’s one, and it will take more than six years to re-register the chemicals in this system. The burden of registration will also transfer to many downstream users of chemicals in the UK, with many more becoming importers with an obligation to register chemicals for the first time. This comes on top of new customs and VAT processes, and paperwork, not to mention the complexity of rules of origin, increasing the costs and burdens on UK businesses.
This burden is an inevitable consequence of the way in which the UK government decided to establish its own independent regulatory system, rather than taking advantage of the work already under way at EU chemical agency ECHA, which has more resources and data than any other chemicals regulator globally; the Swiss take a different approach – see below.
Undermining the principle of ‘no data, no market’
The industry proposal to require data only on an exceptional basis would undermine the ‘no data, no market’ principle of REACH, and is not a robust regulatory model as the GB regulator would have insufficient data to properly regulate chemical use. It is also similar to the discredited and very slow EU ‘Existing Chemicals’ process that was replaced by EU REACH over 15 years ago.
This industry plan would create delays in regulating hazardous chemicals and could also potentially create new opportunities for industry to delay action through arguments on whether a particular piece of data is needed, as is already seen in REACH’s substance evaluation process.
The Swiss model as a potential compromise?
The Swiss system for chemicals regulation is a potential model, as on the one hand it doesn’t require full registration data for chemicals that are registered in REACH, so reducing burdens on industry, but on the other hand it generally follows EU decisions on regulating chemicals as a default, so protecting human health and the environment. There are provisions in the Swiss approach for divergence from EU controls (i.e. the Swiss still have ‘sovereignty’ to continue to use hazardous chemicals).
It’s also worth noting that there are some chemical-related areas where Switzerland has gone further than the EU, such as in regulating the chemicals used in inks on food contact materials.
A Swiss-type approach provides a potential compromise that could be beneficial for both UK industry and health and environmental protection.
CHEM Trust’s Executive Director Michael Warhurst said:
“It was the UK Government’s decision to prioritise ‘regulatory sovereignty’ at any cost that has resulted in the burdensome GB system for regulating chemicals.
Deregulation is not the answer. It is very disappointing to see industry pushing for this when in other areas companies are publicly calling for closer alignment with the EU, and when they have very little appetite themselves for divergence from REACH.
A better compromise is the Swiss approach, which avoids the need to re-register chemicals but also has alignment with EU controls as the default, though with the ability to diverge in situations justified to the Swiss regulator.
In addition, It is unfortunate that we are currently only able to work with media coverage of this letter, as the letter itself has not yet been published. Is the industry trying to avoid public scrutiny of their demands for deregulation?”