ChemRegs Newsletter – February 2019

Substances of Very High (or National) Concern

[The content of this article contains public sector information from the Commons Select Committee licensed under the Open Government Licence v3.0]

The UK Parliament’s Environmental Audit Committee has launched an inquiry into the impact of toxic chemicals in everyday life on human health and the environment. The inquiry will focus on whether “ministers are doing enough” to control how toxic chemicals are used in everyday products and to protect the public from the environmental and human health problems associated with them. It is also going to look at the current government regulation of these substances.

UK chemicals policy is currently regulated at EU level by the European Chemicals Agency (ECHA) and the REACH regulation.

The Health and Safety Executive (HSE), with the Environment Agency on environmental aspects, monitors the use of hazardous chemicals at UK level. The Office for Product Safety and Standards is the oversight body for identifying consumer risk.

The UK is also a signatory to the Stockholm Convention, which aims to eliminate, restrict or reduce the production of Persistent Organic Pollutants (POPs) and the Rotterdam Convention, which aims to protect the environment and human health by monitoring the movement of potentially hazardous chemicals in trade.

One of the pressing concerns of the Environmental Audit Committee is what will happen to the regime of “substances of very high concern” (SHVC) under the REACH Regulation once we leave the EU.

In general terms, SVHC are substances that have hazards with serious consequences, for example, they cause cancer, or they have other hazardous properties and/or remain in the environment for a long time with their amounts in animals gradually increasing (bioaccumulation).

The criteria in REACH for these SVHC are:

• Substances meeting the criteria for classification as carcinogenic, mutagenic or toxic for reproduction (CMR) category 1A or 1B in accordance with Regulation (EC) No 1272/2008 (the CLP regulation);
• Substances which are persistent, bio-accumulative and toxic (PBT) in accordance with the criteria set out in Annex XIII of the REACH Regulation;
• Substances which are very persistent and very bio-accumulative (vPvB) in accordance with the criteria set out in Annex XIII of the REACH Regulation;
• Substances giving rise to an equivalent level of concern to substances meeting the above criteria. Such substances may have endocrine disrupting properties or have properties, that although not meeting the criteria for being a CMR, PBT or vPvB, there is scientific evidence of probable serious effects to human health or the environment. Such substances will be identified on a case-by-case basis.

Substances meeting these criteria may then be placed on one or both of two lists that are defined in the REACH Regulation: the so called ‘Candidate List’ and the ‘Authorisation List’ (Annex XIV).

Indeed, listing of a substance as an SVHC by the European Chemicals Agency (ECHA) is the first step in the procedure for restriction of use of that substance.

Restriction in EU-speak means it is either being banned or users of the substance are told to find something else to use instead. It can also impose any relevant condition, such as requiring technical measures or specific labels.

A restriction may apply to any substance on its own, in a mixture or in an article, including those substances that do not need registration, for example, substances manufactured or imported below one tonne per year or certain polymers.

However, on-site isolated intermediates, substances used in scientific research and development, and substances only posing risks to human health from their use in cosmetics, are exempted.

The Candidate List of substances of very high concern for Authorisation can be found here.

It is quite a sobering list.

Pick a substance at random and create a google search by entering chemical name + common uses, e.g. “Boric acid common uses”.

You will be surprised what everyday consumer products contain substances with health hazards.

Now when we leave the EU, the current legal position is that the entire corpus of EU law will be cut and pasted into UK law via the European Union (Withdrawal) Act 2018.

Therefore, the Candidate List of substances of very high concern for Authorisation will also be transferred over into UK law on the day that we leave.

However, the candidate list that is transferred over into UK law will not include new substances or new discoveries on existing substances in EU law that are identified after we leave. In effect, if a new substance is added to the candidate list the day after we leave the EU, it will not be part of UK law.

The UK’s Environmental Audit Committee inquiry will look at this possible gap in the current regulatory regime.

Mary Creagh MP, the Chair of the Environmental Audit Committee, said:

“The use and control of toxic chemicals in everyday products is a pressing environmental issue with serious implications for human health.

“Consumer products, including children’s toys, have been found to be contaminated by toxic chemicals that can end up in in blood and breast milk. Fire retardants, used in furniture and electronic devices, are a common source of harmful chemicals and are governed by UK legislation that has not been significantly updated in over 30 years.

“The Government has committed to reducing harmful chemical levels in soil and rivers in its 25 Year Environment Plan. This inquiry aims to find out whether ministers are doing enough to protect the environment and ensure the risk to human health from toxic chemicals is minimised. I encourage anyone with insight to engage with our inquiry.”

The Committee has previously considered the future of chemicals regulation after the UK leaves the EU in 2016-17 and again in a one-off evidence session in December 2018.

Eurostat, the European Union (EU) statistical office, estimates that the EU produced 81 million tonnes of chemicals hazardous to the environment and 219 million tonnes of chemicals hazardous to human health in 2017.

An example is the exposure to toxic chemicals through flame retardants used in items such as electronics and furniture. The Furniture and Furnishings (Fire Safety) Regulations 1988 regulate the fire resistance of upholstered products in the UK.

These Regulations were introduced following a fire in a Woolworths store in 1979 which killed 10 people but have not been substantially revised in over 30 years. In 2010, the Government’s Red Tape Challenge review of the regulations found that there is an over use of potentially harmful flame-retardant chemicals and the current test (the ‘match test’) is not effective.

The Department for Business, Energy and Industrial Strategy (BEIS) has been reviewing these Regulations and running public consultations in 2014 and 2016. Yet almost 10 years after the recognition of hazards posed by chemicals used in furniture there has been no significant action from the Government.

There is also a risk in waste streams. Products containing recycled materials have been found to be contaminated with toxic chemicals when recycled into consumer products such as cooking utensils and toys for children.

Toxic chemicals have also prompted health concerns. Exposure to chemicals can be measured in blood and breastmilk. Recent research has identified links between toxic chemicals and a rise in health conditions such as hormone disruption and cancer. Flame retardants have been found to disrupt human thyroid function as well as affecting brain development in new-borns.

Hazardous chemicals have also been found in UK soil and rivers and the Government has committed to reducing harmful chemical levels in its 25 Year Environment Plan, released in 2018.

This plan states “we will publish a new Chemicals Strategy to tackle chemicals of national concern that will build on existing approaches” and that the government will work “internationally to strengthen the standardisation of methods that assess chemical safety in support of the mutual acceptance of data to identify and share information on emerging concerns and new approaches to risk assessments.”

Whether this means that the UK will work with ECHA in identifying SHVCs is not clear.

The plan goes on to state that it will explore “options to consolidate monitoring and horizon-scanning work to develop an early warning system for identifying emerging chemical issues”.

Whether horizon scanning techniques will capture the latest evidence of health hazards in substances is also not clear.

What does seem certain is post Brexit, the UK will pivot to a greater extent towards international standards. This happens at the moment with, for example, the threshold for determining levels of acute toxicity set by the UN via the Globally Harmonized System of Classification and Labelling of Chemicals (GHS).

The Environmental Audit Committee is inviting written evidence on some, or all, of the following points by 8 March 2019:

Why are toxic chemicals used?

1. Why are toxic chemicals used in consumer products? What benefit do they offer? How are levels of toxicity measured?

2. What new technologies and materials are being developed to reduce the use of toxic chemicals? Are they widely available and affordable for producers?

Health risks

3. Which toxic chemicals pose a significant risk to human health? How pervasive is the risk? Who is most at risk? How do producers make consumers aware of health risks identified in their products

4. How does the Government measure the health risks of toxic chemicals? What actions does the Government take to limit consumers’ exposure to toxic chemicals? Should maximum residue limits (MRLs) be applied to toxic chemicals in consumer products? Are current trading standards sufficient to monitor toxic chemicals in consumer products (e.g. children’s toys) and food?

Environmental concerns

5. What is the environmental risk from toxic chemicals? As part of its commitment in the 25 Year Environment Plan, what measures is the Government taking to reduce harmful chemicals in the environment? Will these measures be effective?

6. How are flame retardant treated products currently disposed of and what problems have been identified with these methods of disposal? What is international best practice for disposal?

7. Is current legislation on producer responsibility and management of waste sufficient for recyclers to identify toxic chemicals in products? Should materials treated with flame retardants be available for use as recycled material in consumer products?

UK policy

8. Are the Furniture and Furnishings (Fire Safety) Regulations 1988 (as amended in 1989, 1993 and 2010) fit for purpose? If not, which aspects should be updated?

9. Does the Government’s plan to target £9bn in savings through regulation by 2022 pose risks for chemical regulation?

10. What risks or opportunities does Britain exiting the EU pose to regulation and import of these chemical substances or products containing these substances? What is the likely status of the UK’s continued participation in the RAPEX system in the event of Britain leaving the EU?

11. How should substances of very high concern (SVHC) be regulated after the UK leaves the EU? How should the Government manage risk from newly identified toxic chemicals after the UK has left the EU?

12. What steps can the Foreign and Commonwealth Office take to influence other countries to reduce the manufacturing and improve control of toxic chemicals in consumer products?

Guidance on how to submit written evidence can be found here. Submissions should be made using the Toxic Chemicals inquiry page.

Other News

CDG 2018

Last summer the Department for Transport (DfT) launched a consultation to seek the views and feedback from interested persons on the approach they proposed to take to implement the carriage of dangerous goods regulations (RID, ADR and ADN) once the UK has departed the European Union (“exit day”).

The proposed approach was to make a new piece of legislation to be called the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment (Amendment) (EU Exit) Regulation 2018 (CDG 2018). This will amend the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 (CDG 2009), which was previously amended by the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment (Amendment) Regulations 2011 (CDG 2011).

The proposed amendments were technical in nature and will not change the dangerous goods regulatory framework for use within the UK. The amendments included references to the:

• UK as a ‘relevant Member State’ being replaced with references as a ‘relevant territory’.
• ‘European Agreement Concerning the International Carriage of Dangerous Goods by Road’ (ADR) and ‘Regulations concerning the International Carriage of Dangerous Goods by Rail’ (RID) being updated to the most recent versions.
• Dangerous Goods Directive and the Transportable Pressure Equipment Directive (2010/35/EU) being changed to the directives in force upon the day of EU exit and therefore will be cited as current law.

Additionally, the DfT are re-establishing the legal requirement for vapour recovery systems to be installed on mobile tankers carrying petrol by reference to approved tanks requirements. This would be in a separate statutory instrument, from the Department for Business, Energy and Industrial Strategy (BEIS).

The consultation ended on the 6th September 2018 and disappointingly, only 7 responses to the consultation were received. One of these responses was from ChemRegs.

Of the 7 responses received,  3 responses answered the formal consultation questions, and there were 4 additional responses. Those that responded were supportive of the proposed Regulation and the consultation.

In addition to the responses to the main questions, 3 questions were posed by stakeholders (including ChemRegs) which the DfT have provided government responses to.

The EU exit regulations and the BEIS regulations are likely to be made shortly and in quick succession.

For more information on anything in this Newsletter, please contact us at info@chemregs.co.uk