The Government has advised that in the event of a no deal Brexit, the UK would establish its own regulatory framework which would preserve REACH (the main piece of EU legislation governing the Registration, Evaluation, Authorisation and Restriction of Chemicals) as far as possible. This will involve the Health and Safety Executive (HSE) replacing the European Chemicals Agency (ECA) as the lead regulatory authority within the UK.
The UK's new regulatory framework is to be introduced through a transitional piece of legislation known as the European Union (Withdrawal) Act 2018 (aka "The Great Repeal Bill") and will replicate REACH but will operate entirely independently to the EU regulatory system.
What type of business does REACH affect?
The scope of REACH is wide-ranging and sets out responsibilities which affect almost every business in the UK and can be summarised as follows:
- Businesses who manufacturer or import 1 tonne or more of any given substance (chemical element and its compounds in the natural state or obtained by any manufacturing process) from outside the EU are responsible for registering that substance each year with the ECA. Alternatively, importers may appoint an EU/EEA-based Only Representative to take over such responsibilities. Such representative must have sufficient ability to understand and implement the registration requirements under REACH.
- Businesses that use chemicals are under a duty to ensure that they are being used safely as well as sharing their risk management measures with those further down the supply chain.
- Businesses selling chemicals are under a duty to pass information down to their customers as well as to their own suppliers in the event that the customer asks them to do so.
What could this mean for businesses within the UK?
- UK companies who wish to export chemicals to countries inside the European Economic Area (EEA), and who are registered with REACH, will need to transfer their registrations to an EEA-based organisation before they are able to sell within the EEA.
- Companies importing chemicals within the UK from EU or EEA suppliers will need to adhere to a UK registration process which will be done directly through the HSE.
- Companies wishing to place chemicals on the UK and EEA markets will need to make a separate registration for both.
A summary of the steps businesses will need to take
- UK-based companies who are registered under REACH at the time of the UK's exit from the EU
- Such companies will be legally recognised under the UK REACH system, but will be required to open an account under the UK REACH IT system as well as providing further supporting information to the HSE.
- Companies operating within the UK and procuring substances and mixtures from EU/EEA suppliers
- These companies will become importers under UK REACH and will therefore have an obligation to hold a UK registration as importers.
- Companies wishing to have continued access to the UK market will need to adhere to a notification procedure by opening an account on the UK REACH IT system and providing information to the HSE within 180 days of the UK leaving the EU (26 September 2019). After notification and within two years of the UK leaving the EU (by 29 March 2021), substances must be registered with the HSE if they are to continue being imported to the UK.
- Alternatively, the company may encourage the EU/EEA supplier to appoint a UK-based Only Representative who may take on such UK REACH obligations regarding full registration.
- UK-based importers/distributers of non-EU/EEA chemicals who would like to continue selling into the EU/EEA market
- Companies in this scenario cannot appoint an Only Representative (OR) as above under EU REACH as only a manufacturer, formulator or producer may do so. In order to continue selling into the EU/EEA, such companies will need to ensure that either:
- their EU/EEA customers hold a valid EU REACH registration as importers by 30 March 2019; or
- the non-EU/EEA manufacturer appoints an OR based in an EU/EEA country by 30 March 2019.
For more information regarding the implications for businesses operating within the chemical industry, as well as further details on the specific registration requirements please click here