Overview
The future strategic direction of UK's approach to chemicals regulation, product compliance and environmental law regimes is temporarily on pause while the governing Conservative party selects a new leader, who will also be the new Prime Minister. However, there are no shortage of developments, many driven by the ongoing adjustment to an independent market of Great Britain. In this newsletter we provide our thoughts on the legal implications of announcements and initiatives from the past couple of months.
UK Government Consults on Extension of Time for UK REACH Registration Obligations
As has been widely anticipated, the UK's department for environment, food and rural affairs (Defra) has issued a consultation on extending the deadlines for submitting REACH registration dossiers complete with data. The current deadlines begin in October 2023, with further deadlines in 2025 and 2027, depending on hazard properties and production or import volumes of the substance.
Defra is re-considering the approach to transitional registrations – registrations which duplicate valid registrations held in the EU – and has acknowledged that industry needs more time to adjust to whatever 'REACH alternative registration approach' ('RARA') emerges from that process.The consultation proposes two options: the government’s preferred approach of moving the deadlines to 2026, 2027 and 2028, or a longer extension of time to 2026, 2028 and 2030.
This question of timelines seems premature. An extension of time is needed for discussions on the RARA - indeed, Defra has acknowledged that 'do nothing' is not a genuine option. However, asking stakeholders how long industry needs to 'register', when there is no clarity on what ‘registration’ will entail (scope, purpose, data requirements, etc.) is somewhat putting the cart before the horse.
Stakeholders can respond to the consultation here. The consultation closes on 1 September 2022.
UK’s Distinct Regulatory Approach to PFAS Imminent
As the EU presses ahead with the drafting of a proposed EU REACH restriction on PFAS (due to be released for consultation at the start of 2023), the UK is taking a different approach.
The EU is expected to issue a proposal for a REACH restriction, grouping together the thousands of substances which have been identified as PFAS. In the UK, instead of defaulting to restriction mechanisms under UK REACH, the Environment Agency (EA) and the Health & Safety Executive (HSE) were asked to consider all options through a Regulatory Management Options Analysis. There was a significant response to the call for evidence earlier in 2022, in which Steptoe was involved, and the conclusions of the EA and HSE are eagerly awaited. The RMOA was promised in Summer 2022, although given the high profile of PFAS, it is possible that we may need to wait for the new environment ministers to be appointed in the early Autumn.
Our expectation, having followed this agenda carefully, is that the UK is likely to adopt a significantly different approach to the EU, with a narrower focus on tackling areas of greatest risk and addressing PFAS sub-groups of greatest concern, rather than the somewhat ambitious approach being advanced in the EU to tackle all PFAS as a single group.
Doing Things Differently: HSE Guidance on Data Sharing for Biocides in Great Britain
Data sharing (the right to refer to studies owned by another company to satisfy regulatory requirements) has been a source of significant discussion under both the UK REACH and GB biocides regimes. Submission deadlines for biocides dossiers have come earlier than those for UK REACH and so has data sharing guidance on (i) identifying data owners through an inquiry procedure, (ii) generation of vertebrate studies, and (iii) the procedure for asking HSE to grant a right to refer (a data sharing dispute procedure).
The "fair, transparent and non-discriminatory" standard will be applied both under the biocides and REACH regimes, so decisions made on biocides could be an early indication of how data sharing disputes will be resolved. There is a body of experience on data sharing from ECHA's decisions and subsequent appeals to the ECHA Board of Appeal (BoA). We expect the approaches taken by ECHA and the BoA be considered persuasive but not determinative of HSE’s approach (or that of the First Tier Tribunal for UK REACH).
In one aspect of data sharing, HSE has already indicated that it will not be following the BoA. Recent guidance states that "If the prospective applicant cannot reach agreement…the prospective applicant can ask HSE for permission to refer to the data" and "must provide HSE with details of the steps you have taken to try to reach agreement with the data owner [and] evidence you paid the data owner a share of the costs involved in generating the data". Making the payment a precondition departs from the approach of the BoA in case A-001-2016. It held that the BPR does not require the payment of a share of the costs incurred to have been made before the data sharing dispute was lodged. It is apparent that the BoA and the HSE understand the common provisions in Article 63(3) BPR in different ways. Since payment is a precondition, other questions will arise for the HSE, including whether there is an adequacy test as to the amount of the sum paid before submitting a request for permission to refer to HSE. This is unlikely to be the only case where UK and EU authorities look at the same legislative text and understand it differently.
The HSE Guidance on "Data sharing and GB BPR" is available here.
Plastic Packaging Tax Concerns as First Payment Deadline Arrives
The UK's ambitious plastic packaging tax (PPT), in which plastic packaging that contains less than 30% recycled content is subject to a tax of £200 per tonne, has been the source of a significant amount of confusion in the market since it came into force in April 2022. We have been supporting clients on difficult questions such as the scope of the tax (what is caught, and what is not), what counts as 'recycled', who in the supply chain is liable for the tax, and how to evidence compliance and due diligence for complex supply chains.
This pressure is increased with the arrival of the first reporting and payment deadline: those subject to the charge need to make a PPT return for the first quarter and pay any tax due by 29 July 2022. Although the UK authorities are likely to avoid heavy-handed enforcement for innocent mistakes in the early stages of the scheme, the UK Treasury will want the tax revenue and our advice is to ensure robust procedures are in place as early as possible.
Businesses Given More Time to Adapt to the UKCA Marking Regime
The department for business, energy and industrial strategy (BEIS) has announced another extension to the full implementation of the UKCA regime – the new conformity assessment mark which has replaced the CE mark for Great Britain.
Products bearing the CE mark can be placed on the market of Great Britain until the end of 2022, but from 1 January 2023, those products will need to bear the UKCA mark. However, to ease the transition, BEIS has announced that the UK government will introduce new legislation to allow the UKCA mark to be placed on a label affixed to the product or on a document accompanying the product, rather than the product itself, until 31 December 2025.
The timing of the new legislation is likely to be another victim of current political events, but the intention to smooth the transition is clear, and is very much welcomed by industry, distributors and retailers.
English Court Declares UK Government’s Net Zero Strategy Unlawful
The High Court in London has declared that the UK's Net Zero Strategy is not in compliance with the Climate Change Act 2008, and has ordered the government to present a fresh report to Parliament by March 2023. The case is of relevance to all those operating in the UK, as the proposals and policies contained in the Net Zero Strategy will dictate the pace of the UK's transition to net zero by 2050, which will affect every part of the UK's economy.
Government Ploughing Ahead with New Legislation to Make “The UK the Best Place in the World to Invest in Agri-Food Research and Innovation”
England is bringing forward new legislation for genetically modified organisms in the form of the Genetic Technology (Precision Breeding) Bill, creating regulatory divergence with both the EU and other countries in the UK.
UK REACH at a Crossroads: Departure Achieved, But Where We Are Headed?
In an article for legal publishers LexisPSL, we take a deeper look at the transition to an independent UK REACH for the market of Great Britain, addressing both the progress made to date and the tasks that lie ahead.
Why ESG Matters for Chemicals Management Professionals
In an article for Chemical Watch, we discuss how the rise of ESG means a greater focus on sustainable chemistry, and why product stewards and chemicals management professionals have an important role to play.
