At the start of September, the UK Government announced changes to the framework for its post-Brexit chemicals regulatory system, British REACH, or ‘BREACH’ *, which will deregulate the new system before it has even started to operate.
Chemical and other companies have been complaining about the cost and burden of having to re-register their chemicals in BREACH, which they estimate to be over £1 billion. In response to these complaints, the UK Government has now announced that it will amend the BREACH rules to delay when this safety data needs to be provided. For chemicals produced or imported at 1-100 tonnes per annum this data will be required in around seven years from now (i.e. 2027), four years later than is required by the current BREACH legislation. In contrast, the EU REACH deadline for this safety data was the end of May 2018 – over nine years earlier than the UK’s new deadline.
The BREACH system is an attempt to copy the EU’s world-leading REACH regulatory system for industrial chemicals, which the UK is still part of until the end of the transition period. CHEM Trust has long argued that it would not be possible for the UK to copy this system effectively, and this deregulation provides strong evidence for our case. In our view the best option is for the UK to remain aligned with the EU’s system and to negotiate with the EU to gain access to REACH safety data.
The planned change of deadlines will require secondary legislation in order to amend existing BREACH legislation; this has not yet been published by the Government.
Not better, but worse
The UK Government has claimed that this system will provide equivalent levels of protection for consumers and the environment as the most advanced system in the world, the EU’s REACH (Registration, Evaluation, Authorisation and restriction of Chemicals) Regulation, with then-Secretary of State for the Environment Michael Gove even claiming on 30th July 2017 that it would be “better”.
This latest deregulation is another sign that this is not the case, and in reality BREACH will leave UK consumers and the environment less protected from harmful chemicals.
The UK system will have less safety and use data on chemicals than REACH, even when all registration data has been delivered, as REACH has years of data from companies around Europe who are making, importing or using chemicals. This lack of data will already make it harder for the UK regulator (the Health & Safety Executive) to identify and control hazardous chemicals.
This new delay in collecting safety data will mean that the HSE will lack basic safety data on many chemicals for many years after the same chemicals were registered in EU REACH. This will make it very difficult – if not impossible – for HSE to regulate these chemicals. Controls on chemical use require evidence, and run the risk of being challenged in court by chemical companies, in which case lack of evidence can result in the regulator having to withdraw a control.
You can’t just copy EU REACH
This latest development highlights what has been said repeatedly by CHEM Trust and other stakeholders over the last few years – that attempting to provide similar levels of protection as the EU system would be very costly for the British taxpayer and industry, very difficult complete on time and would still result in a system that was weaker than the one it’s replicating.
It’s not just a matter of transposing EU regulations into UK law, but replacing a system of governance that provides value for money through the sharing of data, resources, expertise and workload across EU countries and a single, centralised procedure for industry by which it can access a very large EU market. Duplication of work is avoided through – for example – data sharing, which also minimises animal testing.
Setting up a separate, parallel UK system involves duplication of these procedures, time and data, that will cost industry an estimated £1 billion to provide the same information already available under REACH. In our analysis this process will not provide a single benefit to the UK, not to the environment, consumers, workers or industry. UK businesses are unlikely to gain from regulatory divergence, as the EU system sets the global standard.
The UK HSE will be expected to take over the functions of ECHA with a fraction of its budget and without the expertise of its workforce. The new regulator has been promised a budget of £13million a year for this work, which is dwarfed by ECHA’s annual budget of €100m, with over 600 staff. The trade union BECTU has expressed scepticism about the resources available to HSE for this work.
It was in recognition of these challenges that Theresa May, the previous UK Prime Minister, announced in 2018 that her Government would seek associate membership of the European Chemicals Agency. When Boris Johnson became Prime Minister he moved away from this objective, though the UK has been seeking to gain access to REACH safety data in the negotiations on an EU-UK trade deal, though without making any commitment to remain aligned with EU REACH. CHEM Trust’s analysis is that the EU will not give such access without a commitment to align with REACH controls.
A worrying situation
Dr Michael Warhurst, Executive Director, CHEM Trust said:
“This announcement shows that UK ‘BREACH’ is in crisis – the claim that the UK could create a copy of the EU’s REACH is dissolving with its first touch with reality. It highlights the difficulty facing the UK in creating an effective, functioning standalone system. Without a change of plan, there will be little more than a hollow shell of a regulator for when the transition period comes to an end.
“The government needs to urgently focus its efforts on realistic negotiations with the EU on chemical safety, which will require a commitment to follow EU controls as they develop. Such an approach will ensure strong protection of our health and that of the UK environment, and assist UK companies.”
If the UK Government does not keep pace with and remain aligned with new REACH controls, the UK could become a dumping ground for products and chemicals banned in the EU. Currently, there is not even a process for considering new EU controls within the UK regulatory system.
* The UK’s new system – which is due to come into force in January 2021, at the end of the transition period – is most accurately called “Great British REACH”. It is not UK-wide as Northern Ireland will remain in EU REACH as a result of the Withdrawal Agreement. In this blog we refer to it as British REACH or BREACH, a term that was used in the UK Parliament by the then Minister Theresa Coffey in March 2017.
- The announcement on updated deadlines was covered by Chemical Watch, including a quote from CHEM Trust.