The European Chemicals Agency (ECHA) has released a database
seeking to advise chemical producers of how their legal
obligations will change after the UK leaves the European
Union in the process known as "Brexit".
"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," the ECHA warned British
companies.
Importantly, UK-based suppliers of any minerals-processing
chemicals as well as 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*. But following Brexit on March 29, those registrations
will become null and void.
EU-based customers (or those in the European Economic Area
(EEA) - 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 either have to relocate to the EU or
the EEA or it must 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 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, the
ECHA warned. 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
Representative’.
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, the ECHA
said.
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," the ECHA said.
Another potential risk for UK companies is 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.
UK companies with an authorization to sell biocidal chemicals
into these EU and associated companies will therefore have to
seek authorization to do so from a company based in these
export markets.
There is less concern over the fact that a 'Brexit
Britain’ would not be covered by the
EU’s classification labeling and packaging (CLP)
regulation, mainly because it is assumed that this law would
end up on the UK Statute Book via the government’s
so-called 'Great Repeal Bill.’
Furthermore, the labeling elements of this legislation that
are based on the United Nations’ Global
Harmonized 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," the
ECHA said.
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 membership 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 the EU.
"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," a spokesman said.
"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 prejudge the outcome of the
negotiations," he added.
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 to
avoid repeated or additional registrations in the UK, the
spokesman said.
"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," he added.
The ECHA warnings, however, are "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
arrangements.
"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," Marco Mensink, CEFIC director
general, said.
"Certainty will help chemical companies adapt and continue
doing business in a rational and predictable manner," he
added. "Decisions about continued investment can only be made
based on long-term predictability."
*Registration, Evaluation, Authorisation &
restriction of CHemicals