Chemicals Regulation – CLP (Brexit UK)

The UK has today updated its Technical Notice on CLP, and this now gives further instructions, here.

If there is no deal :

(1) The UK would establish an independent standalone chemicals regime. [this is looking increasingly likely in any event, deal or no deal]

(2) At the time of exit, as the UK would effectively adopt the GHS in the same way as the EU, the UK classification and labelling regime would be based on the existing EU regulatory regime in order to provide continuity for businesses, with amendments to enable functions presently carried out by the EU (including those performed by ECHA), instead being carried out in the UK by the Health and Safety Executive (HSE).

(3) Companies operating in the UK will deal with HSE in place of ECHA.

(4) The main duties and obligations on suppliers to classify, label and package hazardous chemicals placed on the market will remain in place.

This means the duties on UK manufacturers, importers and downstream users to classify, label and package the substances and mixtures they place on the UK market will remain.

This would also be the case for the obligations on those suppliers to identify, examine and evaluate available scientific and information on substances and mixtures where it relates to the possible physical, health or environmental hazardous properties of those chemicals to ensure all the requirements of classification are fulfilled.

Suppliers must also comply with mandatory classification and labelling.

[please note, it’s still unclear if current downstream user obligations under REACH will be continue, I posted about this the other day]

(5) Companies importing chemicals into the UK from EU countries would become importers under CLP and would need to be sufficiently competent to comply with the duties and obligations on an importer, just as they would if importing chemicals into the UK from a non-EU country.

(6) HSE would have the ability to put in place new arrangements for mandatory classification and labelling. These arrangements would allow new and revised classification and labelling to be proposed, considered in liaison with the devolved authorities and adopted for the UK.

(7) Companies would be required to use new UK arrangements and IT tools provided by HSE. These IT tools would be a UK mandatory classification and labelling list (of substances) and a UK notification database. The new arrangements will be operational after 29 March 2019.

(8) Responsibility for chemicals being imported into the EU from the UK would rest with whoever is the EU-based importer (remember, a third country importing into the EU will require the use of an EU-based legal entity) – the importer may therefore need details of the chemicals involved from the UK-based company.

Data Protection Law (Brexit UK)

The UK has today issued Guidance on how UK Brexit Data Protection Law will operate. This guidance is here. There is already a UK Technical Notice on the subject.

The EU (Withdrawal) Act 2018 (EUWA) retains the GDPR in UK law. The fundamental principles, obligations and rights that organisations and data subjects have become familiar with will stay the same.

To ensure the UK data protection framework continues to operate effectively when the UK is no longer an EU Member State the Government will make appropriate changes to the GDPR and the Data Protection Act 2018 using regulation-making powers under the EUWA.

The regulations and more detailed guidance will be published in the next few weeks.

These regulations would:

• Preserve EU GDPR standards in domestic law

• Transitionally recognise all EEA countries (including EU Member States) and Gibraltar as ‘adequate’ to allow data flows from the UK to Europe to continue

• Preserve the effect of existing EU adequacy decisions on a transitional basis

• Recognise EU Standard Contractual Clauses (SCCs) in UK law and give the ICO the power to issue new clauses

• Recognise Binding Corporate Rules (BCRs) authorised before Exit day

• Maintain the extraterritorial scope of the UK data protection framework

• Oblige non-UK controllers who are subject to the UK data protection framework to appoint representatives in the UK if they are processing UK data on a large scale

I will add this legislation to the Global OHS and ENV Brexit Law List, in subscription Cardinal Environment EHS Legislation Registers & Checklists.

The Government has also issued 6 Steps for Business to take – here.

Six steps

1 Continue to comply Continue to apply GDPR standards and follow current ICO guidance. If you have a Data Protection Officer, they can continue in the same role for both the UK and Europe.

2 Transfers to the UK Review your data flows and identify where you receive data into the UK from the European Economic Area (EEA). Think about what GDPR safeguards you can put in place to ensure that data can continue to flow once we are outside the EU.

3 Transfers from the UK Review your data flows and identify where you transfer data from the UK to any country outside the UK, as these will fall under new UK transfer and documentation provisions.

4 European operations If you operate across Europe, review your structure, processing operations and data flows to assess how the UK’s exit from the EU will affect the data protection regimes that apply to you.

5 Documentation Review your privacy information and your internal documentation to identify any details that will need updating when the UK leaves the EU.

6 Organisational awareness Make sure key people in your organisation are aware of these key issues. Include these steps in any planning for leaving the EU, and keep up to date with the latest information and guidance.

Brexit Bill Tracker (UK)

The current state of Brexit Bills (Dec 5th 2018) is in the Institute for Government diagram depicted.

– Fisheries bill entered Committee stage yesterday

– Trade bill still missing in action in the Lords

– First bill *only* needed for no deal exit

– No sign of the Immigration bill (or white paper)

IF the UK Government loses the 11th December vote, the No Deal exit emergency legislation and instructions are published. I will post a new post then.

14 Nov 2018 Withdrawal Agreement (EU-UK Brexit)

I posted yesterday (Brexit Status) that Withdrawal Agreement text had been agreed between EU and UK negotiators. This text was agreed last night at a meeting of the UK Cabinet, and then published – here. Alongside the 14 Nov 2018 Withdrawal Agreement text, a starter for the Outline Political Declaration on the Future Relationship was also published, and a Joint Statement (in that link).

Alongside this, DExEU also published and Explainer and Explanatory Notes – here.

The EU also published a Fact Sheet on the Withdrawal Agreement (WA) text – here, and a Fact Sheet on the Protocol on Ireland and Northern Ireland (one of the 3 Protocols to the WA) – here.

The 14 Nov 2018 Withdrawal Agreement has 185 Articles, 3 Protocols, and a series of Annexes.

The objective of the Withdrawal Agreement (WA) is to put in place an orderly exit of the UK from the EU on 12 midnight CET (11pm GMT) 29 March 2019 – dealing with matters such as citizen rights, money, and a series of separation technicalities. The WA (if ratified as a Treaty) also puts in place a Transition Period (in the UK, this is termed an Implementation Phase) lasting until 31 December 2020, during which EU Law will continue to apply and trade will be unchanged.

Note :

(1) the WA text must pass through a series of gates before ratification as a Treaty. When a Treaty, it will be given effect by the EU (Withdrawal and Implementation) Bill in the UK, which itself must be created and enacted. And this new Bill will necessarily amend and rewrite parts of the already enacted EU (Withdrawal) Act 2018. It is hoped, but by no means certain, these gates can be crossed by the exit date of 29 March 2019.

(2) during the transition to 31 Dec 2020, EU Law would continue to apply to and within the UK and override domestic law. But, as the UK will be a third country, this means it will have only minimal influence on the creation and enactment of EU law in that phase.

(3) a single extension for an (at present unspecified) length of time is permitted to the Transition Phase, this extension to be agreed by 1 July 2020. A firm end date will need to be negotiated by the European Council on 25th Nov (if it takes place).

(4) a specific Protocol for handling the border between Ireland and Northern Ireland is the first of 3 Protocols in the 14 Nov 2018 WA text. This Protocol includes a detailed “backstop” to be used if the Future Relationship is not in place by the end of the transition period.

(5) the UK is a Third Country on exit on 29 March 2019, the transition period gives a further short period for transition to this Third Country status (relationship with the EU).

(6) the objective is to transition from the current EU member state status direct to the Future Relationship (Trade Agreement) status, via the Transition Period (which could be extended).

Further work is ongoing, and the WA text must pass a series of gates.

It is essential that Brexit Preparedness planning continues, and that the current Brexit Preparedness and Brexit Contingency EU and the UK Notices are read and understood. I have posted these. Please keep following this Blog for updates.

Current Brexit State 14 Nov 2018 (UK and EU)

EU and UK officials have agreed the text for the Withdrawal Agreement (a treaty) and Outline Political Declaration (on the future relationship between the UK and the EU bloc). This text was communicated to the UK at 9pm 12 Nov 2018, and the UK Cabinet will meet today at 2pm 14 Nov 2018. A vote of the UK Parliament, and of the European Parliament, is required, and each Member State must ratify.

Reminder : the UK is a Third Country from midnight CET 29 March 2019.

The EU has issued Brexit Preparedness Notices, and other Communications – here. I have posted about these.

Yesterday 13 Nov 2018, the EU issued a new Communication – here, and a new Travel Notice here. I posted this yesterday.

The UK has issued Technical Notices – here. I have posted about these.

France has agreed its Preparedness Law – the draft law is here. Further information is here. I have posted about this Law.

Some dates already apply now :

(1) pet vaccination

(2) online applications (UK) for ECMT International Road Haulage Permits (from 26 Nov 2018)

In the event, the Withdrawal Agreement and Outline Political Declaration text does not progress, further No Deal Instructions can be expected from 1st December 2018. HMRC and DfT already issued further No Deal instructions (I posted about these), and more can be expected.

In the event, the Withdrawal Agreement and Outline Political Declaration text does progress, and the Treaty is ratified, this will give a Transition/Implementation phase until Dec 2020, but the UK is still a Third Country from March 2019 (as above), albeit running under the arrangements put in place by the Withdrawal Treaty (in the UK this would be a Withdrawal and Implementation Act).

Business, charities and households must continue their preparations.

Please continue to follow and pay close attention to this Blog.

Chemicals Regulation (UK Brexit Preparedness)

Very little direct Brexit instruction is published by the UK on Chemicals Regulation, beyond the UK Technical Notices (I already posted about on this Blog). The EU also has its own Brexit Preparedness Notices (I already posted about on this Blog).

Today (7th November) the House of Lords EU European Union Committee published its report of evidence taken on the matter. This report is here,

There is agreement between the Government, industry and NGOs that the UK’s continued participation in REACH, the main system of EU chemical regulation, and continued membership of the European Chemicals Agency would be the best Brexit outcome.

But UK Brexit Preparedness is not advanced.

The Report identifies the following as requiring urgent attention (by Government) :

(1) clarifying its intended approach to chemical regulation in the future;

(2) creating and populating a database of chemicals;

(3) preparing a UK body to take on the role of chemical regulation in a way that is independent, transparent and scientifically robust;

(4) enabling businesses, including small businesses, to take pre-emptive action to maintain valid registrations for the EU market; and

(5) mitigating the economic impact on the chemical industry that would result from leaving the EU system.

NOTE THIS (referring to the evidence taken)

If associate membership of and ongoing participation in ECHA are not negotiated by exit day, a number of challenges arise. The first is the fact that, barring any preventative action, all chemical registrations will become invalid in the UK, and all registrations made solely by UK companies will become invalid in the EU. This would prevent the trade and use of those chemicals.

Peter Smith, Executive Director for Product Stewardship at Cefic, explained that there were 21,000 chemicals registered through REACH, 5,000 of which were registered by UK companies.

However, Ms Bulleid made the point that where one of those 5,000 substances is registered jointly by both a UK-based company and an EU-27-based company, “some people will be able to put it on the [EU] market, but the UK registrants will not”.

Ms Lloyd agreed, stating that chemicals registered by UK companies will not be invalid in the EU “unless the only registrants of that substance are UK companies”.

As a result, UK companies will lose access to the EU market, but the number of chemicals that would be prohibited is unclear.

THE REPORT CONTINUES WITH THE EVIDENCE GIVEN BY MINISTERS ON THEIR STEPS ON THE MATTER OF ILLEGAL REGISTRATIONS – these include :

(1) a new statutory instrument (Brexit Regulation) to continue the validity of UK registrations by UK registered companies for the UK market

(2) a DEFRA Secretary of State observation (based on the EU Brexit Preparedness Notices) that UK companies can mitigate by transferring their registration to an EU based affiliate or representative, but this is acknowledged as not possible in advance of exit day so there would be

a void of weeks or months before such companies are able to export substances to the EU.

Ms Edwards acknowledged this difficulty, stating that “there has been some discussion suggesting that you would need some sort of mechanism in place to enable those registrations to be transferred in advance”, but indicating that no such provision had yet been put in place

ON THE MATTER OF THE UK DATABASE

Ms Peake informed us: “Defra has asked for £5.8 million to set up an IT infrastructure to register chemicals in the UK in the case of having to set up an independent UK chemicals regulation system.”

Ms Edwards stated: “We are trying to build a system that will replicate, as far as it can, what the ECHA system does. Some of the fuller functionality that is not necessarily required on day one will come on board on a slightly slower timescale, but the critical thing for day one is to have that registration function in place.”

PLEASE CONTINUE TO FOLLOW THIS BLOG

New Measures for Single-Use Plastics (UK)

The Budget 2018 announced a new tax on produced or imported plastic packaging from 1 April 2022. Subject to consultation, this will apply to all plastic packaging that doesn’t include at least 30% recycled content.

In addition, there are planned reforms to the Packaging Producer Responsibility System, that will also be consulted on shortly.

THIS POST WILL BE UPDATED WITH THE CONSULTATION LINKS, please book mark the post to return to it online, as a new email will not be sent out.