What BREXIT means for CLP-GHS in the UK

Today, I want to go through the potential practical outcomes for CLP-GHS if the UK does, or doesn’t go through Brexit.

There are too many people going on about politics of the situation. At the moment, Brexit, which really means the independent sovereign UK, is like a family jigsaw at Christmas: everyone’s squabbling, half the pieces are missing, and only the oldies remember what the final picture should look like.

As well as looking at the CLP regulation, which covers Classification, Labelling and Packaging, we also need to consider the REACH regulation, in order to cover the Safety Data Sheet requirements of GHS as a whole. (I know it’s ridiculously complicated, see below for more thoughts).

First, some background to the situation:

• Historically, all EEC and then EU rules were issued as Directives, and then adopted into the individual laws of each EEC member country/ EU member state
• This all changed in 2006, when the first directly-acting EU regulation was introduced. This meant that it acted directly on the laws of every EU member state without needing to be passed into that country’s individual laws. Any guesses on what this was? Yes, it was the REACH regulation!
• However, there were still some laws which needed to be added in individual countries, specifically laws about the penalties for non-compliance with REACH, as the EU has (at the time of writing) not brought in a directly acting criminal code (but watch this space….)
• By the time we got to the Brexit vote in 2016, there were lots of EU directly acting regulations affecting the UK, which would disappear into the ether on Brexit, leaving us effectively lawless in certain areas of society

So the country would have been placed in a position where there would be less red tape.

You may think this is no bad thing, but actually it can lead to terrible uncertainty for business, and I think we’re already seeing how the uncertainty around Brexit is actually causing more trouble for business than a clear “in or out” position would have done, e.g. the financial woes at British Steel, Honda etc and consequent job losses.

The UK Government seems to have grown less used to passing laws as the EU’s remit has extended, and various so-called family-friendly laws have been passed limiting the time parliament can sit for (e.g. no more all night sittings we oldies can remember), so the amount of time available for new legislation is greatly reduced, and the speed at which Parliament takes decisions appears to have extended (for example, some of the Brexit debates have completely failed to provide an answer to what type of Brexit Parliament actually wants).

This time limit gave the Government and Civil Service a bit of a headache, because to go through each Directly Acting EU regulation and transpose it fully into UK law would take far, far longer than the 2 years after Article 50 was triggered.

So they came up with a cunning plan (think Baldrick from Blackadder:

) called “Lift and Shift”, where they would literally copy all of the EU regulations into UK law, and only make any technical amendments necessary to make it work.

These minor technical amendments are needed because UK law is based on a completely different principle to EU law. We run on the principle that everything is allowed unless it is expressly forbidden, but the Code Napoleon, and its predecessor, Salic Law, appears to run on the principle that everything is forbidden unless it is specifically allowed.

The cunning plan was to bring these laws in as UK Statutory Instruments, with a conditional clause that they all come into effect if there is a No Deal Brexit.

In other words, for the UK in the event of No Deal, it will be business as usual, but replacing ECHA with the HSE. This applies to both CLP and to REACH.

For CLP, the main changes are likely to be around:

• whether you are importing from the EU or exporting back into the EU, and who the legal importer is to make sure their contact details are on the label (I’ve actually got a query in with the HSE about this, and it’s had to go to Policy for an answer – will keep you posted on the outcome)
• Poison Centre Notification, as you need to be domiciled in the EU to use the Portal (although as we discussed the other week, the Portal isn’t really running yet and the deadlines to use it may have to be put back)
• the good news is that the HSE are not going to require notification to a UK Classification and Labelling inventory, if you’ve already notified to the C&L at ECHA

However, REACH will have more major changes, although these are not directly to do with GHS, as for Safety Data Sheets it will still be “business as usual”. Non-GHS changes are likely to be significant, particularly around registration:

• are you importing from the EU or exporting back into the EU, and if so, do you need to re-register under UK-REACH
• what’s happening with Authorised substances
• existing Restrictions will still be in place

So No Deal is nearly all set up, although the UK-REACH statutory instrument has just had to be updated to correct a piece of bad wording.

If we do leave with No Deal, the idea is that Parliament will then go through the regulations which mimic the EU’s directly acting Regulations, and change them to suit UK needs, although this will still be a very big job, and take a significant amount of time, probably several years. But at least to start with, UK-CLP and Safety Data Sheets under UK-REACH should be pretty much the same as we have at the moment.

The other options are:

• don’t leave, in which case it’s business as usual, although there are some significant changes to how the EU runs coming up under the Lisbon Treaty
• leave with a managed Deal, which is likely to mean that we continue to pay in to ECHA and it’s also business as usual

I hope this explanation of what’s likely to happen is useful, and you aren’t panicking about how any of the Brexit outcomes may affect CLP-GHS.

GHS Classification Courses from TT Environmental Ltd

8th July 2019

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