The main stakeholders in chemicals regulation – from Europe’s biggest industry players to the NGOs – have been united in calling for the UK to remain a participant in Europe's chemicals regulatory regimes, including the REACH Regulation and the Biocidal Products Regulation. Within the sector, there is little appetite for a separate UK regime. However, the real barrier here is the politics: there is serious opposition in the EU-27 to the UK cherry-picking certain EU single market rules that benefit it, while avoiding others.
As we observed at the time, it was telling that when Prime Minister Theresa May's Mansion House speech of 2 March floated these concepts, it was met just five days later with a strong rebuttal from the President of the European Council, Donald Tusk. Theresa May had proposed – quite sensibly and pragmatically, in the eyes of those who understand chemicals regulation – that the UK might have 'associate membership' of the European Chemicals Agency (ECHA) and that products should only 'need to undergo one series of approvals, in one country'. Donald Tusk’s response was that 'a pick-and-mix approach for non-member states is out of the question'.
How will businesses be affected?
The matter is one of real importance to manufacturers, importers and downstream users of chemicals, and very many complex and interwoven supply chains have been built upon the existing regimes. Billions of Euros have been spent over a decade-long transition period for the REACH regime in obtaining data on substances, using that data to register for market access and obtaining authorisations for the continued use of substances of very high concern.
The prospect of the UK creating its own version of REACH – even if on near-identical terms – is going to be a logistical headache for business with some significant obstacles (for example, around data access rights) and yet more expense. There is also a very real risk that, with two parallel regimes, divergence will be inevitable, as rules are interpreted in different ways within two different legal regimes.
It is not surprising, therefore, that there has been great anticipation over what the political declaration between the UK and the EU-27 would say about the subject.
The UK-EU Political Declaration
The draft document, released on Thursday 22 November, contains the following commitment:
'The Parties will also explore the possibility of cooperation of United Kingdom authorities with Union agencies such as… the European Chemicals Agency (ECHA)'.
So what does that mean? Well, it means the door is not closed, and that has – quite rightly – pleased many stakeholders. However, there is a long road to travel to move from 'the possibility of cooperation' to arrive at the solution that industry wants, and the political barriers remain a strong as ever.
Our advice remains as before: the sector should argue for as close alignment as possible, but in the meantime it should continue its contingency planning, for even if this current deal survives in the current political climate, there is still a lot to do to move from a vague possibility of cooperation to an integrated system of chemicals regulation with mutual recognition between the UK and the EU-27. To many EU politicians, that’s still too much like the UK having its cake and eating it.
How can Burges Salmon help?
Our REACH, chemicals and product stewardship team is following developments closely and is advising clients on Brexit strategies. If you are interested in discussing these issues further please contact Michael Barlow or your usual Burges Salmon contact.