Approaching the UK REACH regime

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The end of the transition period in December 2020 is fast approaching, and the chemicals industry will soon need to navigate a new regulatory landscape for chemicals in the UK. The UK government has confirmed that it will not be seeking continued membership of or participation in the European Chemicals Agency (ECHA) or the EU regime for the Registration, Evaluation, Authorisation or Restriction of Chemicals (REACH). Instead, from 1 January 2021, a new UK REACH system will be introduced.

UK REACH

This new system is likely to look familiar to current EU REACH participants. Details of the day-to-day functioning of UK REACH are not yet available, but the legal framework will reflect the existing EU REACH Regulation. That regulation will become UK law at the end of the transition period. At the same time, three regulations are set to come into force (the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019; the REACH etc. (Amendment etc.) (EU Exit) (No.2) Regulations 2019; and the REACH etc. (Amendment etc.) (EU Exit) (No.3) Regulations 2019) (the UK REACH Regulations). These will adapt the existing EU Regulation to a UK-only regime and introduce transitional provisions for the recognition of existing REACH registrations and authorisations held by UK-based entities. The Health and Safety Executive (the HSE) will act as the UK chemicals authority.

Ensuring business continuity

UK manufacturers, suppliers and users of chemicals should take steps now to ensure business continuity and compliance with UK REACH from 1 January 2021. Businesses should be looking now at their position under REACH and considering what actions they need to take. Existing REACH registrations and authorisations will take effect as UK registrations and authorisations under UK REACH. However, registrants and holders of authorisations are still required to provide specified data to the HSE within certain deadlines, some of which follow shortly after the start of the regime in January.

As a result of the move to a separate UK regime, UK businesses, which are downstream users or distributors under EU REACH and receive chemicals from the EU, would become importers subject to registration requirements under UK REACH. Transitional provisions provide for a two-year grace period in which businesses in this position can continue to import without a registration, but also require the submission of certain data to the HSE for substances imported in quantities of more than one tonne.

Access to data

For many registrants, providing this information to the HSE will involve negotiating access to the registration data held by ECHA and owned by consortia set up for joint substance registration under EU REACH, and incurring the associated costs and fees. In response to industry concerns, the government has indicated that it is keeping the submission deadlines under review, and powers in the Environment Bill, discussed further below, would allow the government to extend these if necessary. In addition, the draft future trade agreement published by the UK government includes a chemicals annex that provides for the sharing of data and substance information. This is, of course, subject to ongoing negotiation with the EU. However, if agreed, it may reduce the data submission requirements placed on UK REACH registrants.

At its outset, the UK REACH regime will be closely aligned to the EU regime upon which it is based. However, going forward there is the possibility of regulatory divergence between the two, as future changes to EU REACH including, for example, updates to the substance restriction and authorisation lists, would not automatically be mirrored in the UK version.

The Environment Bill also anticipates the possibility of future changes to UK REACH by granting the Secretary of State powers to amend the REACH Regulations. There are limits placed on these powers. Any amendments must be compatible with Article 1 of REACH, which sets out the aim and scope of the regulation, including the protection of human health and the environment, and certain protected provisions, related mostly to "fundamental principles" of the regime, may not be amended. The government policy statement on the bill states that this is to "ensure a smooth transition to a UK chemicals regime" and "make it possible to keep the legislation up to date and respond to emerging needs or ambitions for the effective management of chemicals", and a DEFRA memorandum on the bill further indicates such powers could also be used to make amendments to the transitional provisions described above, including the requirements and deadlines for submission of data to the HSE. We may therefore see some evolution in the UK regime in future.

In the meantime, with negotiations with the EU on the future relationship ongoing and the potential for changes to the transitional provisions for registration under UK REACH, those in the chemicals industry should watch out for further information on and potential updates to the UK regime as they prepare for the transition.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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