Caroline Raine discusses the impact of the expected UK departure from membership of the EU on identification and communication of chemical hazards.

Many of the goods exported from the UK, supplied within the UK, are general hazardous chemicals (excluding specific types such as biocides, cosmetics and plant protection products). Industry may, therefore, be considering the implications in the post-Brexit period.

This article summarises how such hazardous chemicals are currently controlled, the changes that will be required, and any opportunities to reduce the demands on business compared to the current scheme and its expected, but yet to be implemented, developments.

International trade

UN Purple Book

The UK has been and will presumably continue to be represented as an independent nation as an expert member of the United Nations Sub-Committee of Experts on the Globally Harmonised System (UNSCEGHS), which deals with classification issues. Accordingly, it is expected that the UK will want to continue to have a legislation regime in place that meets the objectives of the UN GHS system.

For international trade — whether to the 27 remaining EU Member States or to any other country, the status quo will remain largely as it is today, except as indicated below, depending on the trade deal that the UK decides to act under.

Exports to EU/EEA

For chemicals exported to the remaining 27 EU Member States and the 3 European Economic Area (EEA) additional countries, it is possible that under the requirements of Regulation (EC) 1272/2008 on classification, labelling and packaging of substances and mixtures (the CLP Regulation), the use of a UK-based name, address and telephone number alone may not be acceptable any longer in relation to classification, packaging and labelling.

To EU/EEA but UK outside EEA

In this scenario, the UK would be free to decide which way it wants to go. Hence, it is likely that the UK will make domestic legislation based on the UN GHS (ie equivalent to the USA’s Hazcom 2012), but see below.

Thus, in theory, UK exporters could send the goods out to an EU/EEA Member States compliant only to UK legislation and leave the EU/EEA importer to relabel as necessary for compliance.

The same situation could apply to safety data sheets (SDSs) under whatever the UK chooses to enact (again see below).

To EU/EEA but UK as member of EFTA and EEA

If this course of action was taken then the CLP requirements would continue to apply and the sole use of a UK-based name, address and telephone number would be acceptable. The requirement to supply recipients in other EU/EEA Member States with labelling in their national language(s) would remain.

The same would apply to SDSs.

Other than EU/EEA

Here once again, it will depend on the decisions the UK takes.

If UK joins EFTA and EEA

Here the requirements of the EU’s Prior Informed Consent Regulation (PIC, EU Regulation 649/2012) will continue to apply. This, as well as dealing with specially dangerous chemicals controls (rather outside the scope of this article), does require the application of EU CLP and Registration, Evaluation and Authorisation of Chemicals (REACH) SDSs issues to exports, including its arguably onerous language requirements for those exporting.

If UK does not become an EEA country

Then in this case, the UK exporter would be free from any requirements in respect of language and could legally export under English language labelling. Whether this will be acceptable commercially is a separate issue.

Domestically

Here the situation is going to be more complicated.

Since the late 1970s, UK legislation has had to reflect the European Directives (initially just the Dangerous Substances Directive 67/548/EEC (DSD)).

Current

The current situation is that CLP and REACH apply directly, with specific statutory instruments providing for enforcement and identifying the applicable Competent Authority for various functions.

Post-Brexit — but EFTA/EEA

If the UK negotiates to become a member of the European Free Trade Association (EFTA), it is perhaps likely to want then also to become part of the EEA (agreement on the EEA that includes all EU Member States plus EFTA’s Norway, Iceland and Lichtenstein, but not Switzerland) in order to get access to the single market.

Should the UK become an EEA member then the CLP Regulation will continue to be applied, so no change from the current situation will occur, but UK legislation (see below) will probably need to be tweaked.

Further, the UK will lose the right to vote on any changes to CLP — though the UK’s expertise in classification and labelling issues may continue to be welcomed at the technical levels.

Should the UK try and go separately as an EFTA state only, like Switzerland, then the UK will be free to decide its future — it is likely to remain bound by legislative issues such as imposition of CLP and its requirements.

Post-Brexit outside EEA

In this scenario, the UK would be free to decide which way it wants to go. However, having been and probably still being involved in UNSCEGHS, it is most likely that we would choose to implement a GB and NI version of legislation similar to CLP.

Legislation changes — post-Brexit

Consequently, almost regardless of what decisions are taken, it is most likely that while the essence of what will be required from suppliers and seen by users will not be noticeably different, new legislation will be required to formally enshrine the new system.

The proposed changes, when consulted, should be carefully examined to ensure that they do what is intended and introduce no untoward consequential issues and concerns.

Conclusion

Unlike the transport of dangerous goods where very little change is likely the consequences for supply, chemical hazard communication is much more complicated and will no doubt mean new legislation will need to be carefully watched as it is developed.

Finally, if you have any views on the aspects of chemical hazard classification, packaging and communication that you feel must be maintained then please do write and let us know by email: cma@croneri.co.uk.

Last reviewed 23 May 2019