By Keith Nuthall and Sarah Gibbons
ECHA has released a database seeking to advise chemical
producers of how their legal obligations will change.
"If your business is in any way part of a supply chain that
links you to businesses located within the 27 EU member states
remaining after the UK’s withdrawal, you will face
some fundamental changes," ECHA warned British companies.
Importantly, UK-based suppliers of any minerals-processing
chemicals and, indeed, chemicals that are made from processed
minerals will have an obligation by May 2018 to register
chemicals that are made or imported in annual quantities of
between one and 100 tonnes under EU chemical control system
REACH. And yet, following Brexit on March 29, those
registrations will become null and void.
As a result, their EU-based customers (or those in the
European Economic Area (EEA) – countries of Norway,
Iceland and Liechtenstein), may have to re-register such
chemicals themselves if they want to continue buying them from
the British supplier that registered them initially.
There are two other options, ECHA guidance said. The British
chemical manufacturer will have to relocate to the EU or EEA,
or appoint what is called an 'Only Representative’
within the EU/EEA. This is a company or person that is
authorized to make the relevant filing under REACH and would be
legally responsible for ensuring a British exporter complies
with EU rules.
Also, there are also significant changes for a UK company
that was a lead registrant for chemical registrations involving
other companies, including those remaining in the EU. After
Brexit, these registrations would also expire, warned ECHA, and
companies wanting to ensure their products can be legally sold
under REACH would have to appoint a new lead registrant, the
British lead registrant would have to move to the EU, or it
would need to become an EU-based 'Only
There is also potential serious concern over the use of
chemicals that are sufficiently toxic that they require a
special REACH authorization to be used in the EU market. These
are held by the companies supplying such chemicals. Where these
are British, after Brexit, "the respective REACH Authorization
will lose its legal effect with the date of the UK withdrawal"
and so the EU purchaser will not be able to buy these chemicals
from the British supplier, said ECHA. Any buyer of such
chemicals in the EU or EEA will have "to assure you that you or
one of your upstream suppliers based in the EU has obtained a
REACH Authorization for the respective use of the substance,
taking the place of your UK-based business partner," said
Another potential risk for UK companies is over biocides,
notably those used by mineral companies as disinfectants. The
EU is undertaking a review of all biocidal chemicals used in
Europe to check their safety under the EU’s
biocidal products regulation (BPR). Ultimately, biocidal
chemicals sold in the EU need to be formally authorized under
the system, with authorization holders having to be established
within the EU, Iceland, Liechtenstein, Norway or Switzerland.
So, UK companies with an authorization to sell biocidal
chemicals into these EU and associated companies will have to
seek authorization to do so from a company based in these
There is less concern over the fact that a 'Brexit Britain'
would not be covered by the EU’s classification
labelling and packaging (CLP) regulation, mainly because it is
assumed that this law would end up on the UK Statute Book, via
the governments so-called 'Great Repeal Bill’.
Furthermore, the labelling elements of this legislation that
are based on the United Nations’ Global Harmonised
System (GHS) will remain obligatory in Britain because the UK
will still implement the GHS. "Thus, for example, the
pictograms will be valid within the UK," said ECHA.
Faced with such disruption, the UK Chemical Industries
Association (CIA) has said a post-Brexit deal allowing UK
companies to retain their links to the REACH system and
continue using ECHA’s services is the only option
that would not leave British chemical businesses facing
additional costs and administrative burdens.
And regardless of the final outcome of negotiations, a
transition period allowing the UK to remain within the
framework of EU regulations is "essential" to ease into the
transition phase and not cause unnecessary disruption, a CIA
spokesman added. Since the outcome of the EU referendum last
June, the association has been calling on the UK government to
secure the validity of existing registrations and
authorizations prior to Britain’s withdrawal from
"Our views are reflected in the recent Article 50 UK
position on the continuity of the availability of goods on the
market, where chemicals are specifically mentioned by the UK
government as an example of where businesses that have
undertaken compliance activities prior to exit, they should not
be required to duplicate them. At present, however, we are not
in the position to reassure our members this is also the view
of the European Commission and of course we cannot pre-judge
the outcome of the negotiations," a spokesman said.
Under a "UK out of EU REACH" scenario, the UK government and
the EU should ensure that a process is established to avoid
forcing companies to re-register chemicals in the EU, and avoid
repeat or additional registrations in the UK, the spokesman
added. "In a complex area such as chemicals regulations, a
transition period that allows the UK to continue to remain
within the framework of EU regulations in the interim will be
essential to adapt to potential future changes and minimize
disruption," said the spokesman.
The ECHA warnings, however, were "based on a worst case
scenario" of the UK out of REACH on March 2019 with no deal
having been struck, no regulatory co-operation established and
all historic registrations becoming non-existent on that date,
the UK CIA said.
Meanwhile, the European Chemical Industry Council (CEFIC)
has also called for clarity around future EU-UK trading
"Politicians on both sides must provide the earliest
possible signal concerning how the EU and UK will trade in
future so companies on both sides can continue their mutually
beneficial trading relationship. Certainty will help chemical
companies adapt and continue doing business in a rational and
predictable manner. Decisions about continued investment can
only be made based on long-term predictability," Marco Mensink,
CEFIC director general, said.