What are the 2021 Changes to COSHH?

Many companies follow COSHH, as the Brexit transition period comes to an end on 31st December 2020, businesses will face many changes and challenges. They may have some concerns about the impact of changes to health and safety legislation, particularly laws surrounding hazardous substances.

The Health and Safety Executive (HSE) gives assurances on their Brexit webpage that the UK remains strongly committed to the effective and safe management of chemicals. The HSE are there to help businesses navigate through these changes.

It is clear that there will be some changes to legislation and new rules, particularly for those who manufacture, supply, import and distribute hazardous substances. Downstream users will also have to be aware of any changes that may affect them.

This article will look at how the end of the Brexit transition period will affect COSHH and what is currently known about the changes. It will also look at what businesses can do to prepare in this uncertain time and what advice is available to assist them in complying with their duties.

What is COSHH?

COSHH stands for the Control of Substances Hazardous to Health, which relates to a set of regulations that were first introduced in 1988 and last revised in 2002. The regulations have also been amended on numerous occasions, and are now known as the Control of Substances Hazardous to Health (COSHH) Regulations 2002 (as amended). The regulations place duties on employers to reduce the risks to employees’ health by preventing or adequately controlling exposure to hazardous substances.

Hazardous substances can be found in most workplaces and can include:

• Substances that are directly used for specific work activities, such as cleaning chemicals, inks, paints, solvents, adhesives, fuels, pesticides and biocides.
• Substances produced by certain work activities or processes, such as welding fumes and wood dust.
• Naturally occurring substances, in their original or processed form, such as those produced by plants and natural dusty materials.
• Biological agents, such as viruses and bacteria, which can cause infections and diseases.

Exposure to hazardous substances can result in short-term (acute) or long-term (chronic) ill health. According to the HSE, thousands of workers suffer from ill health, such as from asthma, cancer and dermatitis, as a result of exposure to hazardous substances every year. These diseases are a cost to industries, individuals and society. In fact, the HSE estimate that the costs run into millions of pounds every year.

The hazardous substances that employees are potentially exposed to will depend on the nature of the business and its activities. Some may manufacture, import, distribute, supply, store or use hazardous substances. The COSHH Regulations will apply to all activities where there is a risk of exposure, and there may also be additional relevant chemical legislation. It is, therefore, vital to stay abreast of any changes in the regulations, as a result of the UK leaving the EU.

Why are the COSHH changes happening?

The UK left the EU on 31st January 2020. Since then, the UK has been in a Brexit transition period, which will end on 31st December 2020. This means that from 1st January 2021, businesses will face new rules, and there are potential changes in health and safety legislation on the horizon.

The exact nature of the changes is currently uncertain and will depend on whether there is a deal between the UK and the EU. However, as the UK has adopted chemical-related legislation from the EU, there will be changes that will affect businesses, so they should be prepared. Looking at the current guidance from the HSE, it is likely that most EU legislation will be transferred into UK law and revised to reflect new national rules and processes.

What are the COSHH 2021 changes?

There are three main pieces of legislation that relate to hazardous substances, which apply to relevant businesses of all sizes:

• The Control of Substances Hazardous to Health (COSHH) Regulations 2002 (as amended).
• The Classification, Labelling and Packaging (CLP) Regulation.
• The Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation.

The COSHH Regulations were made under the Health and Safety at Work, etc. Act 1974. Therefore, they are a British-made law. The regulations have been amended over the years, in response to legislation from the EU.

However, the COSHH Regulations are unlikely to be significantly affected after the transition period, even if there is no deal with the EU. Some parts of EU regulations are tied into the COSHH Regulations, so there may be some slight changes in the future.

The majority of changes will apply to CLP and REACH, which are EU regulations. There are also other EU regulations for specific substances, such as biocides, pesticides and banned substances. These EU regulations will be replaced with Great Britain (GB) versions.

It is important to note that there will be differences between legislation changes in Great Britain (England, Scotland and Wales) and Northern Ireland. The reasons for this are that Northern Ireland already has slightly different legislation to Great Britain, e.g. the Northern Ireland COSHH Regulations are the Control of Substances Hazardous to Health Regulations (Northern Ireland) 2003. Also, Northern Ireland is under a different arrangement as part of the Brexit withdrawal agreement, which is known as the Northern Ireland Protocol. Therefore, Northern Ireland will continue to be governed by EU chemical legislation in most instances.

Businesses working with biocides

The Biocidal Products Regulation (BPR) is an EU regulation that covers the use of biocidal products and placing them on the market. These are products that are used to protect humans, animals and materials from harmful organisms, i.e. pests and bacteria.

After the transition period ends, there will be a regulatory framework put in place in Great Britain for biocidal products. It will be similar to the current EU framework for the Biocidal Products Regulation. However, both frameworks will operate independently of one another.

It will mean that businesses:

• Applying for approval for an active substance, or for a biocidal product to be authorised in Great Britain – will need to apply to the HSE instead of the European Chemicals Agency (ECHA).
• Applying for approval for an active substance, or for a biocidal product to be authorised in the EU, the European Economic Area (EEA) and Switzerland – will continue applying to the ECHA.

When this new regulatory framework is in place, the HSE will take on ECHA functions, where relevant, in Great Britain, e.g. coordinating the active substance evaluation process. The HSE will also introduce its own processes and systems for receiving and processing applications. Businesses will be required to use the HSE systems and not the ECHA’s systems when applying for:

• An active substance approval.
• Product authorisation.
• Other permissions under the new GB regulatory framework (GB BPR).

There is separate guidance for Northern Ireland.

Classification, Labelling and Packaging (CLP)

CLP is an EU regulation that covers the classification, labelling and packaging of substances and mixtures. It aligns with the Globally Harmonised System (GHS).

From 1^st January 2021, there will be changes to chemical classification, labelling and packaging (CLP). The EU CLP Regulation will be replaced by the GB CLP Regulation in Great Britain. This means that businesses that are based in Great Britain must comply with the GB CLP Regulation if they place chemicals (substances and mixtures) on the GB market. The EU harmonised classification and labelling system will be replaced by Great Britain mandatory classification and labelling (GB MCL).

Businesses should prepare for the following changes:

• GB CLP Agency – Businesses that are based in Great Britain and that are supplying chemicals (substances and mixtures) on the GB market, will deal with the HSE instead of the ECHA.
• GB Notification – Businesses that place chemicals (substances and mixtures) on the GB market will have to notify the GB CLP Agency of the classification and labelling of substances. This will apply to substances on their own or in mixtures where they meet the criteria for notification.
• GB mandatory classification and labelling (GB MCL) – Businesses that are based in Great Britain must classify and label their substances where required. They must do this in accordance with GB MCL, and with the entries in the GB MCL list hosted and managed by the GB CLP Agency.
• Downstream users and distributors supplied from the EU/European Economic Area (EEA) – GB-based downstream users and distributors who are currently supplied by businesses in the EU/EEA will become an importer after the end of the transition period if these supply arrangements continue.
• Exporting to the EU/EEA – The EU/EEA-based importer will be responsible for the classification, labelling and packaging of chemicals exported to the EU/EEA from Great Britain.

There will be some duties that will stay the same under the GB CLP Regulation. For example, businesses that are based in Great Britain (i.e. manufacturers, importers, suppliers and downstream users) will continue to classify, label and package the chemicals (substances and mixtures) they place on the market. The GB CLP Regulation will also continue to adopt the United Nations Globally Harmonised System of classification and labelling of chemicals (UN GHS) in a similar way to the EU CLP Regulation.

There is separate guidance for Northern Ireland.

Prior Informed Consent (PIC)

The current EU Prior Informed Consent Regulation (PIC) administers the import and export of certain hazardous chemicals that are banned or severely restricted. It places duties on companies who wish to export these chemicals to non-EU countries.

After the end of the transition period, there will be a GB Prior Informed Consent (PIC) regulatory regime, which will be based on the existing EU regime. The GB and EU regimes will operate independently of one another.

If list chemicals are being exported from Great Britain, businesses will continue to notify those exports to the HSE as the GB PIC Designated National Authority (DNA). Those who are exporting or importing list chemicals from or to Great Britain (including to or from EU countries and Northern Ireland) must comply with the new GB PIC regime requirements.

Businesses should prepare for the following changes:

• Those who export PIC-listed chemicals from Great Britain will no longer be able to use ePIC. They will need to notify the HSE of listed chemical exports using the new notification procedures.
• The PIC regime will apply to listed chemicals exports from Great Britain, including to EU countries and to NI. Companies that currently only move listed chemicals within the EU single market, and do not export them outside the EU or NI, will have to start to notify these to HSE.
• Where explicit consent has been given by an importing country to another EU country under the current EU PIC arrangements, it will be necessary to seek the consent of that country for GB exports of the chemical. The HSE will seek consent on the exporter’s behalf.
• Exporters and importers will need to include details of the quantities of listed chemicals exported to or imported from EU countries and NI. They will also need to include other countries in the information they submit to HSE in the first quarter of each year.

In Northern Ireland, under the Northern Ireland Protocol, the EU PIC Regulation will continue to apply. Further guidance can be found here.

REACH

Depending on what a business’s role is under EU REACH, there may be significant changes that they will need to adapt to so that they remain compliant. On 1^st January 2021, the European Union (Withdrawal) Act 2018 will bring the EU REACH Regulation into UK law, and it will be known as UK REACH. Any changes to REACH will be so that it works domestically within the GB market.

However, most of the EU REACH Regulation, and associated laws, will be replicated and the key principles retained. The EU REACH and UK REACH will both operate independently of each other.

Businesses should prepare for the following changes:

• Those who supply and purchase substances, mixtures or articles to and from the EU/EEA/Northern Ireland and Great Britain will need to ensure that they comply with both UK REACH and EU REACH.
• Under the Northern Ireland Protocol, EU REACH will continue to apply to Northern Ireland after the end of the transition period while UK REACH will regulate the access of substances to the GB market.

REACH is a vast topic, and the guidance for businesses will depend on the role they have in the chemicals industry. The HSE has produced in-depth guidance on REACHand the implications for businesses.

Businesses working with pesticides and plant protection products

After the end of the transition period on 31^st December 2020, there will be a new independent pesticides regulatory regime, which will operate in Great Britain. The HSE will still be the national regulator for the whole of the UK.

If there are any new decisions taken under the EU regime, it will not apply to Great Britain. This will include active substance and maximum residue level (MRL) decisions and any new EU plant protection product (PPP) legislation.

Businesses should prepare for the following changes:

Existing approvals, authorisations and MRLs

• All existing active substance approvals, PPP authorisations and MRLs will continue to be valid in Great Britain.
• Existing PPP authorisations remain valid until their current expiry date.
• Active substance approvals, due to expire before December 2023, will be extended for three years to allow time to plan and implement the GB review programme.
• All existing MRLs will remain valid until new MRLs are set and amended. The new MRLs will be based on assessment and will be set after the transition period.
• Applicants will need to continue to meet any existing conditions under the new GB pesticide regime.

New applications

• Where businesses are applying for new active substance approvals, PPP authorisations and MRLs, they will continue to submit their applications to the HSE in the same format. There will be no changes in data requirements or format for supporting information for new applications.

Accessing GB, Northern NI and EU markets

• For access to the GB, NI and EU markets, it may require authorisation or amendments under both the GB and EU pesticides regimes. This may be a common application where there is no divergence between the two regimes. This may also apply to future renewals of current authorisations.
• Applicants, authorisation holders and approval holders can be based in any country.

Any business who uses pesticides should be aware that any existing PPP authorisations which were made under the EU pesticides regime, will remain valid in Great Britain.

The EU PPP legislation will continue to apply in Northern Ireland from 1^st January 2021, in the same way as during the transition period, as per the terms of the Withdrawal Agreement and Northern Ireland Protocol.

How can my business prepare?

The best thing that businesses can do is act now and start looking at how the changes will affect them from 1^st January 2021. They can do the following to help them prepare:

• Sign up for the HSE podcasts – businesses can sign up for the HSE podcasts, which will provide further information on the changes to the regulation of chemicals after the transition period. The podcasts are free, and businesses can sign up.
• Sign up for the HSE bulletin service – businesses can subscribe to the HSE bulletin service, which will provide free email updates and the latest news on any chemical legislation changes. They can subscribe.
• Adhering to HSE guidance – the HSE has developed a Brexit transition webpage and has produced guidance specifically for the chemicals industry. However, it is updated regularly, so businesses should ensure that they check for any updates.

Training employees on COSHH

Under the COSHH Regulations, employers have a duty to prevent or adequately control employees’ exposure to hazardous substances in the workplace. Whatever happens after 31^st December 2020, this legal duty will remain.

Employers must also ensure that employees, and their representatives, are given adequate information, instruction and training on hazardous substances. Therefore, any changes to the COSHH Regulations, and other hazardous substances legislation, must be communicated to employees as soon as possible. COSHH awareness course, covers hazardous substance legislation, risks and precautions.

Summary

It is clear that businesses will have to adapt to the changes that will come after the Brexit transition period has ended. Some of these changes will be minimal, and others may be significant. It will ultimately depend on a business’s role within the chemicals industry, and the type of hazardous substances that are involved.

The changes are most likely to impact on those who are manufacturing, importing and exporting hazardous substances; whereas businesses who are users of less hazardous substances are unlikely to be significantly affected by the changes. However, time will tell. There are still many unanswered questions, as a deal with the EU has yet to be achieved. If there is a no-deal Brexit, this may result in further changes.

Businesses must ensure that they keep up to date as much as they can with the COSHH changes. The best way to do this is by regularly checking the HSE guidance, signing up to their podcasts and subscribing to their email alerts. If smaller businesses find interpreting the changes in legislation and rules difficult, it may be worth consulting an expert to ensure that they remain compliant.