House of Lords calls on government to take urgent action to clarify chemical regulations

THE House of Lords EU Energy and Environment Sub-Committee has published a report expressing concern over the government’s current plans for regulating chemicals after Brexit.

The committee, which scrutinises the government’s policies and actions regarding the EU, warned that the government’s preparations for regulating chemicals are not progressing fast enough.

The chemicals sector is the second biggest manufacturing industry in the UK and last year 61% of chemical exports went to the EU with a value of £18bn (US$23.7bn), and 73% of chemical imports came from the EU.  

The main piece of EU legislation governing chemical registration is REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals), which is implemented by the European Chemicals Agency (ECHA). REACH requires companies to register chemicals before they can be placed on the market. If there is no Brexit deal, then chemical registrations made solely by UK companies might become invalid in the EU and the companies could lose access to the EU market.

Transferring registrations

Michael Gove, the secretary of state for environment, told the committee that UK companies can currently take steps to transfer their registrations to EU-based companies to ensure that they would still have access to the EU market. However, Anita Lloyd, legal director at law firm Squire Patton Boggs, argued that transferring registrations prior to exit day was impossible. “Until Brexit day a UK company is an EU manufacturer and so needs to maintain its registration. You cannot sort it out in advance of Brexit, because people do not have the right status, all those supplies are illegal until people get the registrations in place, which cannot happen straightaway.”

The committee urged the government to clarify in what circumstances it would be possible for UK companies to transfer registrations to EU-based companies. If transferring registrations isn’t possible, then the government should work with the ECHA to come to an agreement to avoid a trading hiatus after Brexit.

Copy and paste

The Department for Environment, Food and Rural Affairs (Defra) recently released a framework on how the UK would regulate chemicals in the event of a no-deal Brexit. These plans include setting up a new IT infrastructure that would replicate the current REACH system.

There are 21,000 chemicals registered through REACH, and around 5,000 of these have been registered by UK companies, although some of these registrations were made jointly with EU companies. Gabrielle Edwards, deputy director for chemicals at Defra, admitted that it is “not straightforward” to identify which individual registrations are from UK companies.

The report also highlighted that even if the information on these 5,000 chemicals was gathered, the UK still wouldn’t have access to data on the remaining 16,000 chemicals, which is essential in assessing the safety of a chemical. The committee said that “we find it extremely concerning that it may not be possible to establish which of the existing REACH registrations originate from UK companies. We call on the government to set out the steps it is taking to resolve this issue.”

Thérèse Coffey, parliamentary under secretary of state for the environment, suggested that the UK could just “copy and paste” the information from the REACH database into a UK equivalent, however this is unlikely to work as it raises serious legal concerns on the intellectual property rights of the data. “If the UK Government wished to copy the whole or a significant part of the REACH Database, it would need to negotiate a licence to do this with ECHA,” said Llloyd.

The committee said it had serious doubts on the government’s ability to populate a UK database, and urged the government to set out an alternative approach to securing the information.

A UK regulatory authority

Under Defra’s no-deal guidelines, the Health and Safety Executive (HSE) would act as the lead UK regulatory authority, along with the Environmental Agency. However, according to Coffey, “the final decision has not been taken”. The report also pointed out that it is unclear what the lead regulatory authority would be if there is a more “orderly” exit from the EU. Concerns were also raised over the transparency of an independent UK system, and how it would assess scientific evidence.

The Royal Society of Chemistry (RSC) told the committee: “Decision-making for chemicals in the EU currently draws upon the process of chemical hazard and risk assessment. Chemicals risk assessment is complex and involves thorough evaluation of scientific data and evidence by experts in disciplines such as human and environmental exposure to chemicals, analysis and monitoring of chemicals, chemical toxicology, statistics, uncertainty assessment, risk assessment approaches etc. It is vital that there are structures in place to ensure chemicals regulation is informed by excellent and relevant science, including discussion of the scientific evidence.” 

The RSC said that many questions on a potential UK regulatory body remain unanswered, such as the guidance that will be followed for chemical risk assessment, and whether the regulatory body would call on impartial experts.

Lord Robin Teverson, chairman of the committee, said: "[The government] urgently needs to be working on a Plan B, and that simply hasn't happened, which leaves the sector facing a huge cliff-edge on the day we leave the EU."

The full report can be read here.