UK chemical regulation needs a plan B for ‘no deal’

drum-label-poly-twinlxThis post is by Lord Teverson, chair of the House of Lords EU Energy and Environment Sub-Committee

Virtually every product we use in our day-to-day lives is made from chemicals, so it’s vital that they’re made in a way that protects both environmental and human health. At the moment that process is managed by the EU chemical regulation, REACH, which combines legislation with an EU database, an EU regulator and the EU single market to create a system that keeps us all safe.

Because of this, the transfer of the REACH regulation – as broadly accomplished through the EU (Withdrawal) Act – won’t be enough to keep the REACH system functioning post-Brexit. That requires the EU’s agreement and co-operation, and that is a long way from being guaranteed.

What a chemical cliff edge looks like
Both the UK government and the EU Commission have been talking in recent weeks about stepping up efforts to prepare for a ‘no deal’ Brexit. So what would no deal mean for the chemicals sector?  Perhaps the biggest immediate consequence would be loss of access to the REACH database, which holds information on over 21,000 substances, and which the UK has spent more than a decade helping to develop.

That would mean we would have to re-capture information about all the chemicals made in and imported into the UK. This process would be more straightforward for some substances than others, depending on who owns the information but, either way, it imposes a burden on businesses. In the meantime, the government would have to choose whether to ban a chemical until it is re-registered on the UK system, thus restricting imports and the chemicals that UK manufacturers could use until the information is gathered, or accepting the chemicals without their accompanying safety information. The minister told my committee that government hasn’t yet made that policy decision, but let’s be frank, neither option is good.

And that assumes companies are willing to go to the trouble and expense of duplicating their registration on the UK’s system. For some it might simply not be worth the hassle: and, if we restricted imports from those companies as a result, it could substantially reduce the range of substances available for use in the UK in the long as well as the short term.

Another consequence of losing access to the REACH database could be higher rates of animal testing. REACH has reduced animal testing by enabling information sharing between producers, which means tests only need to be done once. Once that information sharing stops, companies might need to re-test their products to prove that they’re safe, putting more animals at risk.

Crashing out of the REACH system would also mean that UK chemical companies wanting to sell substances to the EU would have to re-register them through an EU-based representative. They would be unable to export to the EU in the meantime, which is a significant problem given that the sector currently exports 55 per cent of its output to the EU.

An alternative plan is needed
The government’s solution to these problems is to seek associate membership of the European Chemicals Agency (ECHA), the EU regulator that manages REACH. Its vision for that membership is that it would allow continued access to the REACH database, UK companies to continue to register chemicals directly (rather than through an EU representative) and, crucially, a single approval mechanism for both markets. All of this would allow companies to preserve their business structures and supply chains, and would maintain UK access to information on chemical safety.

But there’s a problem: associate membership of ECHA doesn’t currently exist. Of course, that won’t stop it from being negotiated, but the EU’s position, so far, has been very clear that ECHA is part of the single market, and the UK’s departure from the EU also means departure from its agencies. That means ‘no deal’ isn’t the only problem scenario: the same issues arise if a wider Brexit deal is reached without ECHA membership.

The clear solution to the potential chemical regulation cliff edge is contingency action. That would involve the government identifying and resourcing a UK body to take over ECHA’s responsibilities. It would mean passing legislation to transfer those responsibilities, and building and populating an IT system with the same capabilities as the REACH database. It would also need to advise the chemicals industry on the impact leaving REACH will have on its companies, and support them in taking action to protect themselves.

But even though Brexit day is only eight months away, the government hasn’t yet taken substantial action on any of these fronts. Instead it is putting all its eggs in the associate membership basket, when there is every chance that basket won’t exist.

To be clear, associate membership of ECHA and continued participation in REACH has been the greatly preferred option of those representatives of industry and civil society who have spoken to the committee, as the best way to protect human and environmental health post-Brexit, and to preserve chemical trade between the UK and EU. But, until that is something the government can guarantee, it must step up its efforts on plan B, even if that is the less desirable route.

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