October has been a particularly busy month on the UK chemical regulations front, as more glitches, unintended consequences or good old fashioned mistakes come to light. So this month, we’re doing a Divergence Special. (It’s not all work-related stuff, we also have Reasons to be Cheerful, and the Weekend Recipe as well).
There are actually two main types of divergence:
- structural divergence, where the laws themselves are different
- detailed divergence, where there is the same designation in both jurisdictions, or the same chemical appears in a specific list, but differences between those lists – examples include the Harmonised / Mandatory classification lists; SVHCs; Restrictions etc
ECHA website issues
In theory, checking for detailed divergence is the easy part, as long as the ECHA website is up and running! There were so many problems last week that ECHA actually had to do a full website reboot yesterday, at 2pm UK time, which seems to have worked, fingers crossed.
However, we’re not out of the woods yet, as their website says “Due to maintenance, most of ECHA’s IT-systems will be unavailable between Friday 11/11/2022 17:00 and Monday 14/11/2022 09:00″ (this is 3pm UK time on Friday, and 7 am UK time on Monday)
Detailed divergence between statutory EU and UK/GB lists
We keep a note of this divergence for our lovely trainees on CLP Mastery, updating it monthly, and this is the situation at 31st October 2022:
As you are probably aware, the 17th ATP to EU-CLP is about to come into effect on the 17th December 2022, and that is going to make life tricky for companies selling certain substances in GB or selling into GB.
A worrying situation for some Mandatory Chemical Classifications in the UK
(First published in Chemicals Coffee Time, 14th October 2022). Regular readers of this newsletter will be aware that Divergence between the Harmonised Classification list in the EU and the Mandatory Classification list in the UK will really start to bite on 17th December 2022, when the 17th ATP to EU-CLP comes into effect, in fact, did they choose that date because it’s the 17th ATP?
Anyway, the issue is to do with how we deal with differences between the HC list and the MC list.
Most of the differences are easy to deal with:
- if a substance is not already on the MC list and appears on the HC list for the first time, you can use the HC voluntarily, as this is the most up to date information available
- if a substance is on the MC list but the HC list adds a new “end point” or hazard class which isn’t on the MC list, again, you can use the HC voluntarily, because it’s “new information”
We were asked to confirm the following situation with HSE on behalf of the Chemical Regulations Self Help Group:
- If a substance is on the MC list, and the HC list reduces the classification of a hazard “end point”, what should we do in the UK? – the answer is to wait until the UK adopt that new classification (or not). (There is information in the Agency Opinions published by the HSE which gives a clue as to what they think, but it doesn’t necessarily mean that their ideas will be adopted).
That seems perfectly reasonable to us. But I wanted to check something which I have been trying to explain to the HSE almost as soon as Brexit occured, so Alison (who was running the discussion with the Helpdesk) asked
- If a substance is on the MC list, and the HC list increases the classification of one or more hazards, what should we do in the UK? The response came back the same as for a reduction in classification, which is to “wait until the UK adopts that new classification (or not)”. Email thread here for reference: download as PDF.
This does not seem reasonable.
For starters, it flies in the face of Duty of Care, and the responsibility to pass on new information in a timely manner to the users of our products.
It also effectively means that companies who have these substances are products, or in mixtures, can be prosecuted under the Health and Safety At Work Act, 1974 (as amended):
- either for failing to keep their product information up to date
- or for failing to use a Mandatory Classification
In other words, you are at risk of prosecution regardless of what you do, “damned if you do, and damned if you don’t”.
And the only reason why this comes about is because of the discrepancy in timescales between the HC list in the EU, and the MC list in the UK.
To be fair to the HSE Helpdesk, they have suggested that one way round this issue is to include the new test data in Section 11 and Section 12 of the SDS, and explain that the Mandatory Classification is used in section 2 in preference to the new data. However, this does not help with products labelled according to the MC list which may hold the “old” classification.
And even if the HSE are not going to enforce against industry, if there is an incident involving those chemicals, and your SDS is technically illegal (for either reason), you can imagine a prosecutor having a field day with that fact in court in a civil action.
Any reputable company wants to remain in legal compliance at all times, yet some may find themselves out of compliance through no fault of their own. Is there not some legal principle preventing this kind of situation developing?
There are 6 chemicals which are affected by this situation in the 17th ATP, and a further 6 in the 18th ATP. Some of these are in widespread use in the UK, and this situation could potentially affect a lot of companies.
I do not want to rock the boat with the HSE, but surely they could be providing better guidance than this? Any thoughts you have on this important issue is welcome.
More information on the MCL/HCL issue is available here (no log-in required, page being updated as the situation evolves): https://www.ghsclassificationcourses.com/gb-mcls-variation-from-eu-hcls-legal-issue/ .
This isn’t the only divergence issue which is worrying people at the moment, we also have the new EU SDS format, which comes into effect fully on 1st January 2023.
Don’t panic about the new EU SDS format
There’s a lot of concern (and marketing!) about the new EU SDS format which comes into effect on 1st January 2023, but it’s a more nuanced situation than many people realise.
For example, if you’re only selling into mainland GB, this new format SDS won’t apply to your products; and did you know that even if you create an EU format SDS with a GB address for contractual reasons, that’s not compliant with EU law?
To answer these questions, and more, we’ve created a new factsheet which summarises the current situation to the best of our knowledge: https://www.ghsclassificationcourses.com/dont-panic-about-the-new-eu-sds/ . (Again, no log-in required, page being updated as the situation evolves).
So we’ve got 2 major chemical regulatory issues, and counting – surely that’s enough for companies selling chemicals in GB to be worried about? Unfortunately, 2 more issues to go.
UK proposed review and revocation of EU laws
Well, there’s the proposal from Jacob Rees-Mogg to review all of the EEC/EU legislation in UK law with a view to revocation by the end of December 2023.
This always seemed like a very big task, considering we’ve got 40 plus years of legislation to be reviewed, and it looks like common sense may be about to prevail (despite the political turmoil in the UK in the last month).
Alison writes: Rumour has it that the government (well… this week’s government) is looking to push the Retained EU legislation bill back to 2026.
They’ve issued a call for evidence to see if it’s achievable: https://www.parliament.uk/business/news/2022/octob…
And there’s a dashboard to track Retained laws: https://public.tableau.com/app/profile/governmentr…
Guess which department is most affected by this? Yes, DEFRA – who’re responsible for most of the laws we’re currently having trouble with. We are tracking this issue here: https://www.ghsclassificationcourses.com/uk-proposed-review-and-revocation-of-eu-origin-laws/ , it’s publicly available, and we’ll keep this page updated as we hear about any changes.
So, in theory, that’s a bit of good news for the chemical industry in, and selling into, GB. The last thing we need are laws being amended quickly and without proper checking and industry input.
The fourth, and last issue we’ve got may not affect your business, as it covers companies importing chemicals into the UK, processing them in a minor way and exporting them again – but if your company is affected, it’s going to be a major issue. (Please don’t blame us at TT Environmental, we just uncovered it!).
REACH and Inward Processing Relief in the UK
This is the set of Customs and legislative arrangements whereby companies in the EU and NI, and (in theory) in GB can bring in products, keep them under Customs control (in the UK in Customs Warehouses or using Inward Processing Relief), repack or formulate the products, and re-export them, without bringing them into the Customs territory, and therefore without bringing them into the scope of EU-REACH or UK-REACH as appropriate.
However, another glitch in the regulations which seems to have arisen due to Brexit.
Briefly, UK-REACH has a different definition for import compared to EU-REACH under Article 3, item 10, which means that all imports to GB are effectively within scope of UK-REACH, although the HSE helpdesk has said that there is an exemption for packages which are not opened. But any processing or repacking previously carried out under Customs supervision is theoretically in scope of UK-REACH!
EU REACH states: “import: means the physical introduction into the customs territory of the Community”
UK-REACH currently states: “import: means the physical introduction into Great Britain“, with no mention of customs territory, although it originally stated “import: means the physical introduction into United Kingdom customs territory of the Community” before being changed under SI 2020/1577, which brought in the Northern Ireland Protocol.
Removing the words “customs territory” alters the meaning entirely, and we have heard from the HSE helpdesk that they would count opening the bottle as bringing products into UK-REACH – in other words, no repacking or reformulating without the product becoming REACH liable.
Where do I start with this? the alteration to existing law by the stroke of a pen? The removal of the “level playing field” between the post-Brexit EU and UK/GB? The fact that this looks like yet another error on Brexit, similar to the Annex VIII to CLP fiasco?
It’s so complicated, I’ve written a factsheet, and also taken advice from our Customs expert, Mark Rowbotham of Portcullis ISC, who has written a summary, and a more detailed document on how this change to UK-REACH contradicts Customs practices.
You can read all about this issue here: https://www.ghsclassificationcourses.com/newsflash-reach-and-inward-processing-relief-in-gb/ , again free to view, and we are keeping this page up to date as well.
Feel free to raise this with your trade bodies/ MP etc, as it goes against so many legal principles, and has such a major immediate effect on a lot of businesses, that it needs sorting out very quickly, as the MCL/HCL issue does too.
Well, that’s the work part out of the way, time for a bit of light relief!
The Weekend Recipe
I know this LinkedIn newsletter is going out on a Tuesday, but that’s what this feature is called in our weekly Chemicals Coffee Time email newsletter, as it comes out every Friday at 9:30 am UK time (sign up here for access to the archive and to receive your own copy).
As we’re well into the pheasant shooting season, you may be lucky enough to receive some from a friend who shoots, or perhaps pick up some from your supermarket. The flavour is similar to (but nicer than) a farmyard chicken, and well worth trying if you haven’t eaten it. This is definitely not one of our “free from” recipes, so I’ll put one of those in next month!
Mrs Maureen Southwell’s stuffed pheasant or chicken breast
- 4 pheasant breasts with skin on if possible (or chicken)
- 6oz crumbled stilton
- 1 stick of celery finely chopped
- 2 small desert apples with the skin on – grated
- Half a dozen walnuts – chopped small
- 1oz butter
- Salt and pepper
- Preheat the oven to gas mark 6/ 200⁰C
- Loosen skin the skin on the meat
- In a bowl mix the stilton, celery, apple and walnuts
- Divide the stuffing between the 4 pheasant breasts and stuff under the skin
- Place the meat into a baking tray and dot the butter over the top of the skin
- Sprinkle with salt and pepper
- Bake in the oven for 30 minutes
- Serve straight away with veg and roast potatoes drizzling any of the juices from the tin over the top
Reasons to be Cheerful
In response to the political turmoil, Alan McGuinness of Sky News posted on Twitter on Wednesday 19th October, “My son has lived through four chancellors, three home secretaries, two prime ministers and two monarchs. He’s four months old.” With an additional comment yesterday – “Soon to be three prime ministers“. https://twitter.com/Alan_McGuinness
And on the 28th October 2022 newsletter, I wrote:
“News from Westminster. Although my favourite candidate, Larry the Downing Street Cat, claimed that “The King has asked me to become Prime Minister, because this nonsense has gone on long enough“, see https://twitter.com/Number10cat/status/15830725416…, it seems that he was a bit premature, and instead we have another human politician in post, Rishi Sunak.
However, this may not be the end of the situation. As one of our regular readers, Peter Watson of Town End (Leeds) plc emailed: “Reminder – Only 2 Prime Ministers until Christmas“. And Matt from the Daily Telegraph: https://twitter.com/MattCartoonist/status/15838684… . Chin up, Larry, your time may come!”
And I found a Two Ronnies clip which reminded me of the legislative confusion we’re dealing with at the moment, “Confusing Library” https://www.youtube.com/watch?v=8dZznfGPYRY.
Many thanks for reading this LinkedIn newsletter, and many thanks to everyone who has contributed. If you have anything you’d like to share, please email me and I’ll do my best to include it in the next newsletter.
It would be great if you’d like to subscribe to this newsletter, or even our weekly email one https://www.ghsclassificationcourses.com/home/news… (which includes access to the email archive).
Look forward to chatting to you in November,
Janet Greenwood, TT Environmental Ltd