CHEM Trust has long had concerns that the UK system of chemical management (UK REACH) would not have the regulatory capacity to match EU action on chemicals; with just a fraction of its budget and staff and without access to the European Chemical Agency’s (ECHA) chemical safety database. The UK has also shown less willingness to regulate than the EU.
These concerns are fast becoming the reality of the new UK REACH system, despite UK Government promises to maintain protections and even to provide a ‘better’ system.
Substances of Very High Concern – missing for action
The UK has already fallen behind the EU on its Substances of Very High Concern Candidate List. It does not include two substances that were added to the ECHA list in January and a further 8 substances that were added in July. This follows its decision to consider just two of thirteen relevant EU hazardous chemical restrictions in its first year, which CHEM Trust covered in its blog ‘UK REACH restrictions: first signs of UK regulatory divergence on chemicals’.
Substances are identified as Substances of Very High Concern (SVHCs) based on their intrinsic hazards, including those identified as carcinogenic, mutagenic, reprotoxic or persistent, bio accumulative and toxic. Entry on the Candidate List carries with it immediate obligations on companies to provide sufficient information to their customers and consumers to allow safe use. It also puts a substance in line for eventual phase-out. SVHC listing is an important regulatory mechanism for encouraging innovation in the development of greener and safer alternatives. As part of its inquiry into ‘Toxic Chemicals in Everyday Life’, the Environmental Audit Committee recommended the UK should align with ECHA’s Candidate List.
The UK list does not include three closely-related brominated flame retardants– BMP, TBNPA and 2,3-DBPA – that were added to the ECHA list due to their carcinogenic properties.
It also omits bisphenol B, an endocrine disruptor that is very similar to bisphenol A, which has been banned in babies’ feeding bottles and thermal paper, due to its potential to impact human health. The identification of bisphenol B as an SVHC would help to prevent “regrettable substitution” occurring (where a banned substance is substituted by an equally harmful chemical from the same group). CHEM Trust highlighted the worries about this in its 2018 Toxic Soup Report.
The Health and Safety Executive, the UK Agency, has decided to add in another layer of analysis to that carried out by its “sister” agency in the EU, ECHA. In its work programme 2021-22, the HSE says it will analyse new substances on the ECHA list not only for whether they meet the hazard criteria for SVHC, but whether “SVHC identification is appropriate”. There are no reasons given for the need for this new layer of analysis, which may well lead to delays in action on hazardous chemicals and also may result in the UK identifying less substances than the EU.
Lack of transparency around decisions to deviate
We are particularly concerned about the lack of transparency around the process by which EU controls on hazardous substances are assessed and prioritised. It is unclear when, or even if, UK REACH will consider the EU controls that have been omitted. HSE says that all controls are “kept under review” and may be considered in future. It’s difficult to believe that some EU controls are not rejected at this stage.
CHEM Trust is concerned that this approach will result in a slower, less transparent and less protective chemical management system. As well as resulting in regulatory divergence from the EU, that will only widen over time.
GB diverging for the sake of it
The extent to which the UK is already falling behind EU protections breaks repeated public reassurances given by the UK Government: that the regime has sufficient capacity to undertake its new regulatory role, that it is “unlikely to diverge very much” from the EU over the medium term and would not do so “for the sake of it”.
While no clear benefits from diverging on chemicals have been articulated, there are significant economic and political costs. For example, from threatening internal relationships with Scotland and Wales, as some areas of chemicals policy are devolved, to the risk of deepening trade barriers between GB and Northern Ireland (which remains within EU REACH under the Northern Ireland Protocol).
Reports from the Institute for Government and the Tony Blair Institute for Global Change have recently said that the UK should be strategic in identifying areas for regulatory change, pursuing those where there are demonstrable benefits, and minimising difference in areas where it is pointless or painful. Both institutes give chemicals regulation as an example of where there are considerable political and economic costs attached to divergence, recommending a pragmatic decision to remain closely aligned with EU REACH.
CHEM Trust’s view
Chloe Alexander, Trade Campaigner at CHEM Trust said:
“In our view, there is little political incentive to depart from standards regarded as the global gold-standard, and potential public outcry if GB starts becoming a dumping ground for substances or products that no longer comply with higher EU standards. We cannot see any GB-specific reasons or circumstances for why new EU controls on chemicals should not be automatically adopted in the UK.
“The best and safest option would be an automatic assumption of alignment with EU standards, with any deviations clearly and publicly justified and open to challenge”.
The Agency for UK REACH Work programme 2021/22, Health & Safety Executive, June 2021
Taking back control of regulation: managing divergence from the EU, J. Marshall, J. Rutter & J. Mills-Sheehy, May 2021.
After Brexit: Divergence and the Future of UK Regulatory Policy, Tony Blair Institute for Global Change, June 2021