by Eleanor Grimes, PhD
On January 31, 2020, the UK left the European Union (EU) and entered a period of transition which ended on December 31, 2020. Therefore, as of January 1, 2021 the UK is only subject to its own laws.
This, combined with the late EU trade deal signed on December 30, 2020, has resulted in major adjustments to the requirements for the supply of chemicals between Great Britain (GB), Northern Ireland (NI) and the EU within a relatively short time frame.
With regards to chemical legislation, the UK effectively undertook a “lift and shift” procedure, adopting the various EU chemical legislation that was in force on December 31, 2020, with only minor changes to the wording to allow for the regulations to work for a single market rather than 27 different member states.
The major exception to this is with respect to Northern Ireland. Due to the need for an unregulated border in Ireland, an additional piece of legislation was introduced called the Northern Ireland Protocol. This protocol states that products placed on the market in Northern Ireland must comply with EU regulations, while at the same time maintaining a tariff and customs free access to the GB market.
Selling into the EU/NI from GB
As of January 1, 2021, Great Britain no longer has free access to the EU market, and therefore any products exported from Great Britain to the EU will require an EU importer to undertake the required regulatory responsibilities for the products. This includes ensuring products have the correct labelling and safety data sheets (SDS), through to making sure the product is correctly registered under relevant regulations such as REACH, BPR, and Cosmetics.
Prior to Brexit, GB companies that held REACH registrations that wanted to retain access to the EU market from January 1, 2021 were recommended to transfer their REACH registrations to an EU only representative. If the registration wasn’t transferred, the registration lapsed when the UK left the EU, and a new registration would have to be sought before the product could be placed back on the market.
There is, however, a REACH registration exemption for products that use chemicals that have previously been REACH registered within the EU. If it can be proven that the substances involved are chemically unchanged and part of a registered supply chain, they do not need to be re-registered upon re-importation back into the EU market.
Products manufactured/imported into GB
Due to the “lift and shift” procedure undertaken by the UK regulators, the GB requirements currently in force are very similar to those in the EU, but instead of the European Chemicals Agency (ECHA) being the main central governing body, the Health & Safety Executive (HSE) and the Department for Environment, Food & Rural Affairs (DEFRA) have taken over responsibility for chemical products.
The major considerations which need to be taken into account for the two keystones of UK chemical legislation are outlined below:
Under the GB CLP regulation, GB companies will continue to classify, label and package in line with the EU regulations that were in force on December 31, 2020, however the supplier details on the label will need to be those for a GB entity.
The Annex VI harmonised classification list has also been brought over into UK law and is now called the “Mandatory Classification and Labelling List” (GB MCL List); this will be maintained separately from the EU Annex VI list, although changes brought in from the 14th and 15th ATPs that were released prior to the end of the Brexit transition period will still be implemented on the same dates as for the EU.
Any further EU Annex VI updates will be assessed independently in the UK before a decision is made as to whether or not to include the changes in the GB MCL List.
The requirement to undertake a Classification and Labelling notification has also been brought into UK law, with any substances notified by UK companies using the EU system by December 31, 2020 automatically being brought across into the UK system. Any new chemicals that require notifying after this time will be required to use the new UK portal.
The requirement for products placed on the GB market to submit a poison centre notification has, however, remained voluntary, unlike products placed on the market in NI/EU which are subject to the new Annex VIII notification.
Previously, GB companies could take advantage of the EU REACH registrations, but now any company manufacturing or importing a substance, either on its own or in a mixture, above 1 tonne per annum, and placing on the GB market, must hold a UK REACH registration.
For EU REACH registrations that were held by GB companies on December 31, 2020, these will have been transferred over into UK law, and the companies that hold them have 120 days to undertake the grandfathering notification. Once this notification has been completed, they have 2, 4 or 6 years + 300 days from January 1, 2021 to provide the remaining data to complete the registration process. The 2, 4, and 6 year deadlines are dependent on the volume placed on the GB market and hazardous nature of the substance in question.
For companies that were originally a downstream user of a substance registered under EU REACH, they may now have changed roles and may have become the GB importer. If this is the case, those companies will be required to take on the role of registration holder in GB, unless their supplier uses a GB only representative to undertake the UK REACH registration requirements on their behalf.
For a company that was a downstream user to become a UK REACH registration holder, they will need to undertake a DUIN (Downstream user information notification) within 300 days of the January 1, 2021. Once this has been completed they will have the same 2, 4 and 6 year deadlines to complete the registrations.
Currently there have been no data sharing regulations put into place that will allow UK companies the right to access REACH registration data held by EU companies, despite serious concerns over this issue from industry.
Authorisations that are currently held by GB companies can also be grandfathered into UK law via a notification that needs to be completed within 60 days of January 1, 2021. All other existing authorisations were copied into UK law and onto the UK authorisation list, and can continue to be used by downstream users until the existing last application dates and sunset dates pass. In a similar manner, all current REACH restrictions in place on December 31, 2020 have been implemented into UK law, but they will be managed independently from the EU list moving forwards.
With regards to the GB safety data sheet, the format implemented is that outlined in the EU 2015/830 REACH Annex II regulation, and not the recently updated EU 2020/878 regulation; there is a requirement for a GB entity to be listed as the supplier on the document. So far no further information has been published regarding any specifics for the UK SDS.
Products moving between NI and GB
For a product to be placed on the Northern Ireland market from Great Britain, the product will need to undergo the same regulatory processes as a product being placed on the EU market. It will be the responsibility of the Northern Ireland entity to make sure that these requirements are met.
Companies exporting from Northern Ireland to Great Britain, however, do have privileges over EU-based companies that will allow them unfettered access to the GB market if products meet the definition of Qualifying Northern Ireland Goods (QNIGs). Whilst any product entering the GB market will still have to be labelled, classified and notified in accordance with GB CLP, the supplier details can be those of the NI supplier.
QNIGs can also be imported into Great Britain without needing a UK REACH registration, as the GB importer can use the more simplified Northern Ireland Notification process which has to have been completed within 300 days from January 1, 2021 for substances already being placed on the UK market via this route, or before importation occurs for new substances.
Taxes and Rules of Origin
Whilst the last minute trade deal signed on December 30, 2020 allows for tariff free trading between the UK and the EU, this has not resulted in a seamless transition of goods between the two markets. With the UK no longer being part of the EU market, most goods are now subject to VAT and customs duties that were not payable previously and, when combined with the rules of origin regulation, have caused significant additional costs and stress to companies importing and exporting between the UK and EU.
For more information on exactly how these changes impact your business please refer to the UK government website website and the guidance provided by HMRC.
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