Chemical legislation – which affects what substances can be used in products and their manufacture – is a complex area of European law.
REACH in particular has been identified as being particularly onerous on business. Its 849 pages took seven years to pass, and it has been described as the most complex legislation in the Union's history. In 2013, REACH – the Registration, Evaluation and Authorisation of Chemicals – was voted the most burdensome piece of EU legislation by SMEs.
A number of concerns have been raised by business over the years. For those manufacturing within the Europe, REACH was said to create too much uncertainty over the viability of future manufacturing operations dependant on the use of hazardous substances. Concerns have also been raised over complexity and expense of registering chemicals which could affect their availability in the long term, particularly niche chemicals. More recently, companies have been concerned about the overly-prescriptive interpretation of Article 33 – the disclosure of “substances of very high concern” in products.
Working with other chemical-using sectors, downstream users, via the REACH X Sector Group, we set out to explore how UK businesses wanted chemicals to be regulated in future.
As well as techUK, sector contributors included automotive (SMMT), aerospace, defence and security (ADS), plastics (BPF) and coating manufacturers (BCF) as well as the surface treatment sector (SEA) and retailers (BRC).
The results were consistent with the views raised by techUK members:
- Companies are clear that they do not want to see an erosion in work safety and environmental protections.
- Despite ongoing concerns around the complexity and burden of REACH, the majority of downstream users of chemicals want REACH to stay. Access to the single market remains the overriding concern of businesses. Downstream users are concerned about the uncertainty and the cost of establishing a UK specific regime.
- Companies generally supported a negotiation position where the UK can continue to provide scientific and policy input towards ongoing evolution of REACH and substance selection/characterisation.
- A smaller number of companies and associations felt a transition to a risk-based approach to chemical management could increase the appetite for manufacturing investment. They pointed to the ability to influence changes to the authorisation process, the use of Occupational Exposure Limits (OELs) to ensure safe use of substances and other modifications which they felt would not impact trade (such as Article 33).
As with other product-based regulation, there is a real risk that if we fail to match action in Europe on product chemical restrictions, could see unscrupulous manufacturers encouraged to dump products on the UK market that fail to meet EU regulations. The government has already made clear that it will not water down environmental standards as a result of Brexit.
But aligning our approach to chemical regulation with Europe, even with the Great Repeal Bill, will not be easy.
It is a dynamic area of law with new substances regularly being restricted or subject to authorisation, which require the involvement of various EU institutions. A copy and paste job just won't be enough to enable this complex area of law. Presumably the UK will have to negotiate continued cooperation with the European Chemical Agency (ECHA), the body responsible for managing the scientific, technical and administrative aspects of REACH, at least on a transistional basis.
Other questions revolve around the validity of exisiting rulings from the European Court of Justice, which are already shaping the legal interpretation of REACH in areas important to techUK members (for example on Article 33, the communication of Substances of Very High Concern in articles down the supply chain).
We will continue to work closely with our members and other downsteam users of chemicals to help provide views on these, and no doubt other, unanswered questions as the UK's negotiating position becomes clearer.