REACH: Brexit Q&A

Brexit is a fast-moving subject that will have regulatory and commercial implications for chemical companies with an interest in UK and EU markets. Read on to find out answers to some of the commonly-asked questions raised during TSG’s webinar Brexit - staying compliant with REACH regulations, broadcast on 23 January 2019.

When will we know exactly if it will be deal or no deal?

On 29 January 2019, the UK Parliament voted to give Prime Minister Theresa May two weeks to go to the EU and negotiate a change to the so called ‘Irish backstop’. This backstop was designed to prevent a future border between Northern Ireland (UK) and the Republic of Ireland (EU), but which could leave the UK tied to EU regulatory alignment indefinitely.

Whilst the UK Parliament has given the Prime Minister a mandate to negotiate further, the EU has repeatedly stated that there would be no renegotiation.

With 58 days to go before the UK is set to exit the EU (as of 30 January), delaying for a further two weeks is said to increase the risk of the UK leaving the EU without a deal.

What actions would you recommend to REACH regulation actors?

There is probably a lot you need to do in order to identify and then mitigate your risks. Therefore, start planning straight away.

Identify your current role as a manufacturer, import or downstream user in EU REACH for every chemical you have in your inventory. In addition, map your suppliers and customers for these chemicals while paying specific attention if they are in the UK or the rest of the EU.

Once you have all of this information, then work through each chemical and identify if there is exposure to the UK market. For each exposure, identify the actions needed to maintain compliance with EU and UK REACH in the event of a no deal Brexit.

Could a Letter of Access from UK company be transferred to the EU importer?

A Letter of Access (LOA) is typically used to gain access to data required for REACH registrations and authorisations. Each LOA is negotiated between you and a data owner so this is not an easy question to answer. Each LOA needs to be reviewed on a case-by-case basis for its applicability.

UK REACH has not yet been written into law, so it is likely that there is no mention of this regulation in your LOA’s. If the agreement you have with the data owners is unclear, then they should be able to clarify if it can be used to support UK REACH obligations. It is advisable to start reviewing LOA’s and engaging with data owners now.

We are an importer in the UK and not a manufacturer. I assume we will have to set up a new legal entity in the EU and not an OR?

If you are based in the UK and import chemicals from outside the EEA, then there are a number of ways to maintain compliance with EU REACH. As you are probably aware, as a UK-based importer you cannot appoint an EU-based Only Representative to undertake your EU REACH obligations in the event of a no-deal Brexit.

In this case, you can establish an EU office and transfer your EU REACH registrations to that office. However, associated operations such as importing also need to be transferred to that office. If it is workable for your EU customers, then they can undertake their obligations as EU-based imported in the future.

What happens to the downstream users if they do not register the substances within the 6 months and stop their import after the 6 months [new registration notification requirement]? Are they non-compliant with the UK REACH regulation?

The UK Health and Safety Executive (UK HSE) will be responsible for UK REACH in the event of a no deal Brexit. As of today, only two guidance documents have been created and neither cover the scenario that you describe. Our advice is to submit your question to the UK HSE.

When will the UK REACH IT system will be available?

According to guidance published by the UK HSE, the UK REACH IT system – built for registrations, grandfathering and downstream user notifications – will be operable from 29 March 2019.