A quick Pre-Brexit Checklist

You will no doubt be aware of the “fluidity” of the political situation around Brexit, and I’ve given up watching the news because its too stressful, but we do all need to be prepared for Brexit.

So here’s a small, non-comprehensive list on things you should be thinking about in case the UK does leave the EU on 31st October, based on what my clients and colleagues in the Chemical Regulations Self Help Group are thinking about at the moment.

I strongly recommend you also check out the ECHA website help at https://echa.europa.eu/-/act-and-prepare-for-no-deal-brexit-to-stay-on-the-market-and-keep-supplies​ and https://echa.europa.eu/uk-withdrawal-from-the-eu and https://echa.europa.eu/support/qas-support/browse/-/qa/70Qx/view/topic/theukswithdrawalfromtheeu, and the HSE website help at https://www.hse.gov.uk/brexit/clp-no-deal.htm​ and  https://www.hse.gov.uk/brexit/clp.htm​  and https://www.hse.gov.uk/brexit/reach.htm​ and https://www.hse.gov.uk/brexit/brexit-no-deal-guidance.htm​ for further information.

For a quick overview on how CLP and REACH will be brought “as-is” into UK law on Brexit Day, see https://www.ghsclassificationcourses.com/what-brexit-means-for-clp-ghs-in-the-uk/​ .

CLP label issues

Make sure you are as up to date as possible with your CLP classification and notification requirements:

• all products classified, labelled and packaged to CLP standards
• if you are selling from the UK into the EU or vice versa, do you need to have a UK and an EU address on the label, so you can supply into both jurisdictions, or are you relying on your purchasers in the EU or UK becoming importers and adding their address to your label?
• do you need to do this now for materials which will be imported later in the year, as a precaution?
• if you are going to add a EU or UK address to your label, is it a sister company, or someone who is prepared to take on legal CLP duties in the other jurisdiction?

C&L notification​

• are you up to date with your CLP notifications to ECHA for any non-REACH registered substances you make or import into the EU currently?  The UK position is that all current CLP notified chemicals will be deemed to be notified to the UK version of the C&L inventory, but you may have to have evidence you’ve done that
• if you are a UK company, have you copied all of your C&L notification data from REACH-IT? (I understand that there may be a download facility eg into csv format, but have not had to do that myself).  Remember that all UK-based companies will have their access to REACH-IT withdrawn on Brexit Day

Poison Centre notification

• ​Poison Centre notification in the UK is currently voluntary, and carried out by submission of Safety Data Sheets to NPIS, see https://www.npis.org/index.html​ . This is likely to continue if Brexit happens on 31st October.
• If you are based in the UK, have you got copies of all the Poison Centre notifications you have made in the EU, as evidence in case you have to demonstrate you have already done this?
• If you have generated UFIs using a UK VAT number, be aware that these may no longer be valid after Brexit because they  will no longer be EU VAT numbers.  Are you considering generating UFIs using an EU VAT number e.g. for a sister company, and making Poison Centre Notification via the Portal using a company address within the EU eg of a sister company based there? (the Portal is not working fully at the moment, and may not come online until after 31st October, but it’s important you do use valid information once it’s finally up and running).  UFI generator https://ufi.echa.europa.eu/#/create​ Poison Centre Portal https://poisoncentres.echa.europa.eu/​
• Don’t forget that the first Poison Centre notification deadline for consumer products, or industrial or professional products which end up in consumer products, has been moved back from 31st December 2019 to 31st December 2020, mainly because the Member States were not in a position to be able to receive information from the Portal.  The current implementation status on poison centre notification is at https://poisoncentres.echa.europa.eu/documents/22284544/27487986/msd_en.pdf/982d9115-58cb-75c8-80ae-8eb16f5c0009​

14th ATP to CLP (including Titanium Dioxide reclassification)

You will probably be aware that the European Commission are pushing ahead with the Titanium Dioxide Harmonised Classification as a Category 2 carcinogen (as you are probably aware this is a political decision rather than one based on sound science).  The proposal is currently under discussion between the Member States, see https://www.linkedin.com/feed/update/urn:li:activity:6587062543808765952/​

• ​CLP will be brought into UK law as it stands on Brexit Day, and the 14th ATP is going to be introduced probably in early January 2020, with a view to becoming law in 2021
• If Brexit happens on 31st October, this would mean that the Titanium Dioxide Harmonised Classification would not be brought into UK law (unless it was brought in at a later date)
• This would also apply to the other proposed Harmonised Classifications contained within the 14th ATP, they would not be brought into UK law​
• That would mean Titanium Dioxide (and the other 14th ATP substances) might have different classifications, and therefore different labels and SDSs between the UK and EU, so you would need to be prepared to have different product information for the two jurisdictions by the implementation date of the 14th ATP at the latest

REACH​ SDS issues

• Are you prepared to alter your SDSs with the new EU or UK address if necessary? because products sold in the UK or EU will require an address in their own jurisdiction after Brexit (in the same way as labels will require an address within the correct jurisdiction)

REACH Only Representative

• ​If you are based in the UK and selling into the EU, or vice versa, at more than 1 tonne per annum, have you got an Only Representative in place, or are you expecting your purchasers to become Importers and deal with REACH registration issues themselves?
• Do you need to get an OR set up? you can set one up using “suspensive clauses” which means that the OR agreement only comes into force on Brexit Day
• There isn’t a lot of time to find and set up an OR, if you need to have one, in case the UK does leave on the 31st October, but as usual do your research carefully and make sure you have proper legal agreements in place.  One of our clients who is going through this process has found that OR fees vary quite a bit, so be careful that you are not being overcharged just because we’re close to the deadline

Authorisations under REACH

• ​Don’t forget that Authorisations will need to be claimed under UK-REACH to mirror EU-REACH arrangements
• We don’t know at this stage whether Authorisations will be mutually recognised between the UK and the EU
• What is becoming clear is that the Authorisation process does not cope very well with a complex supply chain, e.g. exporting from EU into UK, formulating in UK then re-export back into the EU.  If this is potentially an issue for you after Brexit, you should consider asking the Competent Authority in the receiving country what their thoughts are on whether an Authorisation would still be valid in these circumstances, or whether re-import into the EU should be made by a company holding an Authorisation.

​UK REACH registration

• This will not open for business until Brexit Day, or possibly the day after. Have you got your list of EU-REACH registrations ready for starting the UK-REACH grandfathering process?

And finally, remember that the situation is still fluid, we still don’t know what is going to happen, and if we do get Brexit there are likely to be many unanticipated problems and extra things to do until the situation gets settled.

So “Keep Calm and Carry On”, and we’ll just have to wait and see what happens.

Hope this is useful,

GHS Classification Courses from TT Environmental Ltd

7th October 2019

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