In this article Desmond Waight explains the regulatory environment when exporting general hazardous chemical products out of the European Union (EU).

Introduction

Most subscribers are probably reasonably or very well acquainted with the older requirements for chemical classification, packaging, and labelling set down in the 67/548/EEC Dangerous Substances Directive (known in short as the DSD) and 1999/45/EC Dangerous Preparations Directive (known in short as the DPD); currently implemented in Great Britain as the Chemicals (Hazard Information and Packaging for Supply) Regulations 2009 (SI 2009 No. 716), known in short as “CHIP4”.

Many will also be reasonably acquainted with the new requirements of the Regulation (EC) No. 1272/2008 on classification, labelling and packaging of substances and mixtures, amending and repealing [in June 2015] Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No. 1907/2006, known in short as “CLP”.

However, subscribers will probably also understand that these provisions are only applicable in the EU. This may lead one to conclude that there are no requirements regarding classification, packaging and labelling for hazardous chemicals that are to be exported from the EU. This presumption is false, as we shall show in this article.

EU regulations applicable

Although many people have heard about regulations on very, very dangerous chemicals, under a system known as Prior Informed Consent (PIC), they may have considered that these regulations are not concerned with the sort of general hazardous chemicals that the subscriber is involved with.

However, within these PIC regulations, there are requirements applicable to the export of general hazardous chemicals.

The current PIC Regulation is Regulation (EU) 689/2008. This revoked and remade an earlier version (Regulation (EC) No. 304/2003), which in turn, had revoked an earlier version. So, the PIC Regulations are not new.

The current regulation is being replaced on 1 March 2014 by an updated version, Regulation (EU) 649/2012, although the changes to the requirements for dangerous chemicals which are exported are not substantially changed — merely updated to reflect the changeover from the older classification scheme to the newer, CLP, scheme.

Current general requirements for chemical exports

The current regulation (689/2008) sets out the requirements relating to exports of chemicals currently judged to be dangerous in Article 16, as follows.

Information to accompany exported chemicals

  1. Chemicals that are intended for export shall be subject to the measures on packaging and labelling established in, or pursuant to, Directive 67/548/EEC, Directive 1999/45/EC, Directive 91/414/EEC and Directive 98/8/EC, or any other specific Community legislation.

    The first subparagraph shall be without prejudice to any specific requirements of the importing Party or other country taking into account relevant international standards.

  2. Where appropriate, the expiry date and the production date of chemicals referred to in paragraph 1 or listed in Annex I shall be indicated on the label, and if necessary such expiry dates shall be given for different climate zones.

  3. A safety data sheet in accordance with Regulation (EC) No. 1907/2006 of the European Parliament and of the Council of 18 December 2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and establishing a European Chemicals Agency (1) shall accompany chemicals referred to in paragraph 1 when exported. The exporter shall send such a safety data sheet to each importer.

  4. The information on the label and on the safety data sheet shall as far as practicable be given in the official languages, or in one or more of the principal languages, of the country of destination or of the area of intended use.

Here it should be noted that the reference to “chemicals” is not qualified by the words “listed in Annex I” (which is the listing of the very, very dangerous substances subject to PIC procedures); so applies to all dangerous substances and preparations covered by the DSD and DPD (ie CHIP in GB).

The regulation requires that such exports shall basically be subject to classification and labelling in accordance with EU directives and an SDS in accordance with REACH, although labelling may be as required by the importing country’s legislation where that is applicable.

However, it does require that the label and SDS shall “as far as practicable” be in one of the principal languages of the country of importation. Note here the absence of the qualifying words “reasonably”.

This language issue is covered more fully in the EU Commission’s “Technical Guidance Notes for Implementation of Regulation (EC) No. 689/2008”. This was issued in accordance with the Article and is available on the Europa website. Annex 6 contains a list of recommended languages for the labelling of exports to certain countries such as the following.

  • For Afghanistan, Pashto and Dari Persian, with English as another language used.

  • For Albania, Albanian with Greek and French being other languages said to be used.

  • For China (both the People’s Republic of China (PRC) and Taiwan), Mandarin Chinese with English as the alternative (but note the recent Chinese (PRC) GHS-derived legislation affecting imports.

  • For Equatorial Guinea, Spanish, with French as the alternative language.

Future requirements for chemical exports

The new Regulation 649/2012 that will come into force in March 2014 does not really change matters for those exporting hazardous substances and mixtures (as we are learning to call them), other than change the applicable article from Article 16 to Article 17 and rephrase the text to refer to CLP, rather than the DSD and DPD, provisions. Article 17 is as follows.

Information to accompany exported chemicals

  1. Chemicals that are intended for export shall be subject to the provisions on packaging and labelling established in, or pursuant to, Regulation (EC) No. 1107/2009, Directive 98/8/EC and Regulation (EC) No. 1272/2008, or any other relevant Union legislation. The first subparagraph shall apply unless those provisions would conflict with any specific requirements of the importing Parties or other countries.

  2. Where appropriate, the expiry date and the production date of chemicals referred to in paragraph 1 or listed in Annex I shall be indicated on the label, and if necessary such expiry dates shall be given for different climate zones.

  3. A safety data sheet in accordance with Regulation (EC) No. 1907/2006 shall accompany chemicals referred to in paragraph 1 when exported. The exporter shall send such a safety data sheet to each natural or legal person importing the chemical into a Party or other country.

  4. The information on the label and on the safety data sheet shall as far as practicable be given in the official languages, or in one or more of the principal languages, of the country of destination or of the area of intended use.

UK enforcement

This is currently laid out in the UK’s Export and Import of Dangerous Chemicals Regulations 2008 (SI No. 2108).

Under these so far, it has not been possible for HSE Inspectors to issue improvement or prohibition notices to encourage compliance, but the HSE Consultation Document 249, issued in January, does propose the revocation of these enforcement regulations and incorporation with many other provisions into a single enforcement Statutory Instrument (SI) that would give HSE inspectors such powers.

However, the HSE has undertaken no prosecutions for the classification, packaging and labelling of general exported chemicals failings.

Conclusion

Regulations covering the classification, labelling and SDS issues of general dangerous/hazardous chemicals have been in existence for a long time. These could be very demanding if applied completely (especially considering the language issue).

Last reviewed 13 March 2013