Earlier this month, the Health & Safety Executive (HSE) launched a public consultation on a package of deregulatory policy changes to chemicals regulation. If enacted, these changes will weaken vital chemical safety laws and increase the divergence between UK and EU chemical regulation.
The proposals include changes to (a) the regulation of biocides, (b) the classification of hazardous chemicals and (c) their export to low- and middle-income countries.
Under these proposals, statutory requirements that help to protect public health and the environment from harmful chemicals would be removed, without introducing equivalent safeguards. Instead, the HSE would be granted wide-ranging discretionary powers to selectively adopt regulatory decisions from other countries—most of which, apart from the EU, have weaker chemical safety standards than the UK. This could lead to harmful products, banned or restricted in the EU, entering the GB market, putting public health, the environment, and wildlife at risk.
The consultation claims these proposals would promote growth and generate efficiency savings, though insufficient evidence has been provided for these claims. In our view, a system that aligns with the EU would provide greater certainty for businesses and achieve greater efficiencies, but in a way that would also maintain and improve protections for public health and the environment.
The proposals:
- Ending mandatory renewal processes for biocides and replacing them with a discretionary system that allows HSE to adopt approvals given by foreign jurisdictions, and determine which harmful substances it will review.
Biocides are designed to control or destroy harmful organisms. They include finished products such as disinfectants and insect repellents. Biocidal active substances are also used in products like mouthwashes and antibacterial wipes. They are not only harmful to the organisms they are meant to control, but can also pose risks to people, animals and the environment, so legislation requires biocidal products to be authorised and active substances approved.
HSE has had limited capacity to carry out its regulatory functions post-Brexit. However, these new proposals provide no equivalent protections to mandatory renewal processes to ensure harmful products are taken off the market. While it is helpful to have a mechanism for easily adopting EU authorisations, the proposals give powers to adopt approvals given in ‘trusted foreign jurisdictions”. Countries and jurisdictions that will be considered “trusted” would be clarified in future secondary legislation. This could include not only the EU but also other countries with lower chemical regulatory standards, such as the US.
These proposals could therefore open up the GB market to lower-quality and more harmful biocidal products, including via backroom trade deals for which there is limited democratic oversight. This could include biocidal products that have not been approved in the EU, or whose active ingredient is significantly higher than those considered safe and permitted in the EU. This is of particular concern as there is an increasing risk that these goods that do not meet EU standards may be dumped on the GB market.
At a time when new research by Wildlife & Countryside Link and Rivers Trust show that 95% of rivers are already polluted by harmful biocides, steps should be taken to improve protections from biocides, rather than risk increased contamination from their use and disposal.
- De-linking the GB classification of chemicals from the EU’s
The Classification, Labelling & Packaging of chemical substances and mixtures (GB CLP) sits at the heart of chemical regulation, cutting across different government departments. Classification of a substance as hazardous to health, the environment, or both is often the initial trigger for managing its risks and is connected to an estimated 19 other pieces of legislation. The EU has the most comprehensive, transparent and publicly accessible database of chemical hazards and uses in the world.
The proposals remove the statutory requirement on HSE to respond to new EU hazard classifications within a statutory timeframe, and replace it with a mechanism by which HSE can adopt classifications from around the world. While the new mechanism would enable faster adoption of classifications, it will inevitably result in further divergence from the EU’s gold-standard system for classifying substances for two reasons.
Firstly, the proposals seemingly seek to remove the need to respond to four new hazard classifications that have been adopted by the EU (including for endocrine disrupting chemicals, EDCs). This was a meaningful step that requires companies to assess and label their chemicals with these harmful properties, in turn making it easier for consumers to avoid them. At the same time, other EU laws will start regulating their use in different applications and products.For example, a new EU toys regulation will automatically ban substances classified as EDCs from children’s toys, to better protect children from potentially irreversible health impacts from exposure to EDCs.
Secondly, the current statutory requirement has meant that GB classification, labelling and packaging (CLP) has kept up with the pace and volume of new EU classifications, although GB has diverged in approximately 15% of cases with measures that are generally less strict than the EU.
Further divergence from EU CLP runs contrary to the recent commitment to dynamically align with the EU pesticides regulation and ability to extend the UK-EU reset to areas including industrial goods. It would also increase trade friction with the EU as well as harm Northern Ireland’s place in the UK internal market.
- Changes to GB Prior Informed Consent Regulation (PIC) that would make it easier for UK exporters of the most harmful chemicals to override the requirement that low- and middle-income countries should give their explicit consent to imports, in cases where the importing country has not responded to requests for their consent.
In our view, this proposal could breach the commitment by the UK to dynamically align with EU regulation on pesticides, as this proposal regresses from EU PIC, which covers pesticides as well as industrial chemicals. It also contravenes the spirit (if not the letter) of the Rotterdam Convention, which aims to support countries that may not have the infrastructure to safely accept and handle hazardous chemicals.
Final thoughts
Enabling HSE to adopt regulatory decisions from around the world will create a messy, inefficient and incoherent system that would require significant regulatory resources of both expert staff and data. It would also not provide the certainty and predictability needed by businesses to plan and invest.
These proposals are also particularly concerning because of the lack of transparency and ad hoc way that HSE makes decisions, which have often diverged from and been less protective than the EU gold standard. For example, removing obligations on companies to provide information to assist healthcare workers in cases of accidental poisoning to having fewer conditions than the EU on the industrial use of the carcinogen chromium trioxide. This makes the system more vulnerable to what a Lords Committee has described as “an ever-present danger of regulatory capture”.
There is another way
A system which instead aligns with EU regulatory protections from harmful chemicals, including dynamically aligning with EU CLP (Classification, Labelling & Packaging) classifications and EU decisions to approve and not to approve biocidal active substances and products, would meet capacity constraints without risking chemical safety.
Chloe Alexander, Senior Campaigner, CHEM Trust, said:
“When levels of harmful chemicals entering our environment are already above safe levels, we should be strengthening our chemical safety laws, not weakening them. These proposals replace legal safeguards for protecting our health and environment from hazardous chemicals with a messy and incoherent system that risks harm to people and nature. We urge ministers to abandon these proposals in favour of a system that aligns with the EU, which would achieve efficiencies much more effectively and not at the expense of chemical safety.”
