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BREXIT AND CHEMICALS REGULATION

The chemicals industry in the UK represents about 9% of the industry within the European Union, with trade flows each way exceeding Euros 20 billion each year.

The key legislation governing the chemicals industry in the EU is the REACH chemicals Regulation, which is supervised by the European Chemicals Agency, ECHA, in Helsinki, Finland. REACH requires the Registration of most chemical substances through ECHA.

The REACH chemicals Regulation, with its system of Registration and reliance upon ECHA, is one of the pieces of EU environmental legislation which is not well adapted to being levered into the structure of the Repeal Bill / European Union (Withdrawal) Bill. This leaves open the question of whether the UK is going to opt to try and do that, and to set up its own standalone system of chemicals regulation to mirror REACH, (which the House of Commons Environmental Audit Committee has suggested would be very expensive), or whether some form of continued relationship with ECHA can be negotiated.

Meanwhile, UK companies need to know what is to be the status of the Registrations of chemicals substances that they have undertaken after Brexit. The Environmental Audit Committee has urged continued participation in the REACH Registration process. The large number of UK-based Only Representatives of non-EU manufacturers will face a legal requirement under REACH to be based in the EU, and many are already in process of establishing the necessary commercial structures and networks.

In the short term, REACH compliance or the means and information to deliver it will still be required for any sales of chemicals substances to the EU. Similarly, information to permit REACH compliance will still be demanded from their supply chains by larger companies which are themselves trading across the EU. Therefore, smaller companies already complying with REACH may find some commercial advantages in still being geared up to do so.

The Explanatory Notes to the European Union (Withdrawal) Bill published on 13 July, 2017, stated that - 

"There are many important functions carried out at EU level, such as the evaluation and authorisation of chemicals, air safety regulation and genetically modified food and feed regulation. Depending on what is agreed with the EU, many functions may need to be transferred to appropriate bodies in the UK for them to continue and the power to deal with deficiencies would enable this."

This seems to imply that the UK may consider a national framework of regulation for chemicals, although like much else this could be subject to debate and change. Any Statutory Instrument transferring powers and functions from ECHA to an as yet unnamed UK body would presumably qualify for draft Affirmative Procedure and scrutiny by both Houses of Parliament under the procedures envisaged by the European Union (Withdrawal) Bill.