The powerful influence of REACH can easily lead people to think that chemicals policy is confined to assessing individual chemicals and then restricting sale and use. That is a narrow view. A broader view is that it must be concerned with minimising harmful effects throughout the whole commercial and environmental lifecycle of chemicals.
We know that chemicals are released from manufacturing plants and other sources to air, water, soil, and as solid waste, many of which are regulated. They are also released when products are used, disposed of, and also recycled. They affect many receptors both human and in the environment. They can travel long distances and build up over time even in remote regions.
A new chemicals agency
At present in the UK, we have no institution charged with taking an overview of all the effects of chemicals, capable of assessing achievements and pointing to problems ahead.
A new chemicals agency would administer UK REACH as the UK’s Health and Safety Executive (HSE) does today, but with wider duties and powers. These would include considering the whole lifecycle of chemicals and forming a view of the most serious problems. Such an agency would use data publicly available from Echa as well as any data in the UK REACH database. But it would also need to go out and gather more. Findings would be published.
To inform itself on the burden of chemicals within the human population as well as in wildlife, a new chemicals agency would need to be able to institute, and oversee, surveillance and biomonitoring campaigns in order to evaluate the contribution of different sources. It would also collaborate with existing and new international biomonitoring campaigns.
It would need to liaise with other regulatory bodies concerned with the protection of the environment, the workforce, consumers and public health. The interface between the agency and these other bodies would need to be carefully defined and managed. For example, the Environment Agency (EA) has powers to spur substitution of harmful substances with safer chemicals in the industrial processes it regulates. A new chemicals agency could enter into a dialogue with the EA to evaluate the extent to which substitution is actually happening. It should be a champion for substitution not only in industrial plants but also in consumer products.
It is local authorities that regulate smaller industrial plants, and use nuisance laws to protect the public from other sources (dry cleaners, for example). Their trading standards officers also check the safety of products on sale. A new chemicals agency would need to obtain information from local authorities and, in doing so, it would make them more aware of harmful chemicals. It could be given powers to coordinate the work of local authorities in this field – and provide guidance.
A particular focus should be on consumer products; now recognised as a major source of chemicals that affect public health. Carcinogens in products have long been a concern, but since the 1990s, we have learned that endocrine disruptors (EDCs) affect hormones and hence human development. Testing of products for harmful substances is a low priority for local authorities. The Office for Product Safety and Standards (OPSS), answerable to the Department for Business, Energy and Industrial Strategy (Beis), is fairly new. Neither OPSS nor Public Health England (PHE), answerable to the Department of Health and Social Care, have focused particularly on chemicals in products. A new chemicals agency would create pressure and institute joint programmes with PHE’s successor bodies to assess the health effects of chemicals.
It is an historical accident that the HSE is currently responsible for administering UK REACH. The shift in emphasis of chemicals policy over the years from chemicals in the workplace to chemicals in consumer products makes the organisation less obviously the base for a chemicals agency. Anyone designing chemicals policy afresh today would not see it as the natural home. It has an industrial culture; a new chemicals agency would have to develop an environmental and public health culture too.
It is an historical accident that the HSE is currently responsible for administering UK REACH. The shift in emphasis of chemicals policy over the years from chemicals in the workplace to chemicals in consumer products makes the organisation less obviously the base for a chemicals agency. Anyone designing chemicals policy afresh today would not see it as the natural home
Such a body would be answerable to the Department for Environment, Food and Rural Affairs (Defra) which would have powers to direct it if necessary. Chemicals policy is a difficult subject that is best handled at UK level to prevent wasteful duplication of effort. It would also ensure common, UK-wide standards on chemicals and traded products containing them, in order to preserve the integrity of the UK’s internal market. Since environmental quality is devolved under the devolution Acts to Scotland, Wales and Northern Ireland, they should certainly have a role in the governance of this UK-wide body. Beis and the DHSC would also have a strong interest in how it operated, as well as Defra. The governance should reflect this too.
A new chemicals Act
A new Act of Parliament would be needed to create a chemicals agency with the powers and duties to fulfil the functions described above. Existing UK Acts for assessing chemicals – adopted in 1974 and 1990 – are no longer fit for purpose because they created an untenable division between protection of the workplace and the environment. They were superseded by the EU legislation that came before REACH.
UK REACH is ‘retained EU law’ made by statutory instruments under the EU Withdrawal Act 2018. It cannot be significantly modified, for example, to give powers to a chemicals agency to institute biomonitoring campaigns.
If the EU decided to strengthen REACH, it is quite possible that UK REACH could not be amended to stay aligned, should the government so wish. A new chemicals Act could empower ministers to make statutory instruments setting out a scheme for assessing chemicals based on REACH, but broad enough to cover likely changes.
The Act must also be broad enough to cover any eventual UK/EU agreement for the UK to be associated with REACH and Echa – the UK had wanted a data-sharing arrangement during the Brexit negotiations. In the meanwhile, the UK will struggle to keep pace with the assessments performed by Echa. There is the risk that the UK will fall behind with the result that chemicals banned in the EU are permitted for sale in the UK. To prevent manufacturers outside the UK dumping such chemicals onto the UK market – which could cause public outcry – discretionary powers are needed to replicate any restrictions made in the EU. Accordingly the new Act could enable the chemicals agency to accept data used by Echa to restrict a chemical, as sufficient to allow the same in the UK.
The Act should start by stating principles establishing the broad character of chemicals policy such as the ‘substitution principle’. That principle appears in the Swedish Chemicals Act and means that a safer chemical must be preferred over a more harmful one, wherever feasible. Another should be ‘no data, no market’.
The UK chemicals strategy
The new strategy should be ambitious. It can take account of the EU’s chemicals strategy but should nevertheless be distinctive. A new chemicals agency and Act along the lines described above, would elevate chemicals policy so it was no longer seen as a rather narrow and specialised subject, as it often is today. By catalysing other regulatory bodies, such a strategy would embed chemicals policy as an essential part of pollution policy – and hence of environmental policy. It would give the subject the visibility it deserves.
The views expressed in this article are those of the author and are not necessarily shared by Chemical Watch News & Insight. The article is based on a submission made to Defra and does not necessarily reflect the views of IEEP, nor CHEM Trust of which Mr Haigh is a trustee. His book "EU Environmental Policy – its journey to centre stage" (Routledge 2016) contains chapters on chemicals policy and integrating pollution control.