Environment and Health & Safety Legal Update Webinar – April 2021

On 13th April we held a legal update webinar led by two of our consultants, Jonathan Teale and Esther Morrissey, providing an overview of changes to environment and health & safety legislation in the past year.

As with all other aspects of life, Coronavirus and Brexit have dominated the legislative landscape over the last 12 months. As a result, this year’s webinar covers:

  • An update on key changes to environment and health & safety legislation
  • A brief summary of the changes related to COVID-19 and why there have been so many changes to law since the start of the pandemic
  • A general overview of the key changes relating to Brexit and how these are reflected in your legislation register

 

Simple and clear legal updates specific to you

Questions & Answers

During the webinar, we gathered your questions and have answered them below. If you’d like to know more about our Consultancy Service or the Legislation Update Service, please contact us.

 

What is the latest version of the REACH regulation? Also, what is the equivalent regulation for UK REACH?

The EU version of REACH is Regulation (EC) No 1907/2006 which you can find here.

UK REACH (which only applies in Great Britain) has the exact same name but is recorded on the legislation.gov.uk website and can be found here. Beware however, the version on legislation.gov.uk is still in effect a ‘copy and paste’ version of the EU Regulation – it doesn’t show you all the UK amendments which we talked about in the webinar. However, if you look at our LUS entry (H&S Register here, or Env register here) we have already amended these to reflect the amendments which make the UK version GB specific.

 

Does the new REACH legislation apply to the docks? We are moving the containers with chemicals in but don’t own the contents of the containers.

The importer would generally be the customer who is buying the goods from a supplier in another country. The customer might be the end-user, or they might be a chemical supply company that buys in supplies from manufacturers around the world, before selling them on to customers. Generally speaking, if you are just the freight handler but you do not own and are not responsible for the goods, you would be unlikely to be classed as the importer under REACH.

There is a little guidance from the European Chemicals Agency here (scroll down to the question “Should the importer always be considered as the same legal entity as the consignee stated on the simplified administrative document (SAD) used by the customs authorities? Does this imply that the consignee is considered to be responsible for registration?”). I can’t find any equivalent GB advice from the HSE but the definition of ‘importer’ is the same so the guidance should be the same.

 

If we do import less than 1 ton (of chemicals), do I assume we do not need to do anything?

Correct – you would not need to register the chemicals.

However, be aware that if you are using a chemical on the authorisation list and the ‘sunset date’ has passed, you cannot continue to use it unless you have applied for and been granted authorisation. You need to apply before the ‘latest application date’. The authorisation list together with ‘sunset dates’’ and ‘latest application dates’ are here. The authorisation list only has certain high-risk health hazards such as specified carcinogens and mutagens.

 

Was the deadline for transition of authorisations (to UK REACH) the 1 March or has this been extended?

The deadline was 1 March. If you have missed the deadline you can email the relevant HSE team ukreach.authorisation@hse.gov.uk for advice and they may still allow you to file the relevant information, though this would be entirely at their discretion.

 

You say CE 'placed on the market'. I am assuming that this is newly placed on the market?

If the product is continuously manufactured outside the UK, is CE marked, and is from the same supplier, to the same company inside the UK, then it is not new to market and does not need any change at point of entry to the UK?

No. If you are importing from an EU supplier, you will now be classified as an importer. Previously ‘import’ meant importing from outside the EU into the EU, so you would not have had any duties as an importer if you were supplied by an EU manufacturer. Now it means importing from outside GB into GB. As an importer, you will be responsible for ensuring that the manufacturer has conformity marked the goods.

CE marked goods will continue to be accepted in GB until 31 December 2021 but from 1 January 2022, relevant goods placed on the market in GB must be UKCA marked (except ‘qualifying Northern Ireland goods’ which can continue to be CE marked). CE marked goods that have already been ‘placed on the market’ can continue to ‘circulate’ on the market (i.e. provided that they have been ‘placed on the market’, you can sell them on).

The key here is when the goods were ‘placed on the market’. My understanding is that if you have paid for the goods and they have been made and CE marked, all before 1 January 2022, I believe they have been ‘placed on the market’ in which case you can sell them after 1 January 2022. However, there doesn’t seem to be much useful guidance on the definition of ‘placed on the market’. This is a complex legal question that is outside our area of expertise so you may need to take specialist legal or product conformity assessment advice.

Note that it is the individual goods that need to have been ‘placed on the market’, not the product line generally. In other words, you cannot continue to place CE marked goods on the market after 1 January 2022 on the basis that other goods of the same product line were previously placed on the market before 1 January 2022.

 

Did I understand correctly that the changes in CE marking only relates to products that we manufacture for the market?

The duties generally apply to manufacturers, importers and distributors, and they only apply to certain goods. There is currently no change in the type of goods that need to be conformity marked i.e. if they did not need to be CE marked before, nothing has changed.

For relevant goods, the duties apply when you ‘place them on the market’ and also in some cases when you ‘put them into service’. This depends on which type of goods and which regulations apply e.g. the Supply of Machinery Safety Regulations apply both when you ‘place machinery on the market’ and ‘put it into service’ (which includes making it and putting it into use on your own site). Other regulations (e.g. the Electrical Equipment (Safety) Regulations 2016) apply only when you place the equipment on the market. Therefore you need to look at the relevant regulations for the product and see if they only apply when you ‘place the goods on the market’ or if they also cover ‘putting them into service’.

I’m not sure from your question if possibly you are an importer or distributor. In that case, you will have a duty to ensure that the manufacturer has placed the correct conformity assessment mark on the goods. That means that from 1 January 2022 you would need to ensure that the goods you import or distribute have been UKCA marked.

 

We sold products in 2020 (old NOBO UK based) to the EU but these products were returned to UK for checking. After checking, the same products are requested to return to EU but in 2021; do we need new product label CE certificate (new NOBO EU based)?

The answer depends on when you ‘placed the goods on the EU market’. If you placed them on the market before 1 January 2022 then my understanding is that you don’t need to do anything. If you placed them on the market after 1 January 2022, and they were previously assessed by a UK Notified Body, you would need to have them re-assessed by an EU Notified Body, or your UK Notified Body would need to transfer the certificate of conformity and technical file to an EU Notified Body who can then issue a new certificate.

There doesn’t seem to be much useful guidance on the definition of when goods are ‘placed on the market’. However, if a contract was already signed and particularly if the goods were paid for and title in them had passed to the buyer, I suspect the goods were placed on the market before the 2022 deadline. As I have advised above in a previous question, this is a complex legal question which is outside area our area of expertise so you may need to take specialist legal or product conformity assessment advice.

 

Can you tell me more about how the UKNI mark will work? When is it needed?

Manufacturers in Northern Ireland continue to use the CE mark.

Depending on the type of goods, some goods are in effect self-assessed by the manufacturer, in which case no change. Some goods, however, are conformity assessed by an independent ‘Notified Body’ (you need to look at the relevant Regulations for the type of goods you are dealing with to see if this applies). If your conformity assessment is carried out by a Notified Body and that Notified Body is established in the UK rather than in the EU, then a ‘UK(NI)’ mark is applied in addition to the CE mark.

Those goods can then be placed on the market in Northern Ireland or Great Britain, but not in the EU. For the goods to be placed on the market in the EU, they would need to be conformity assessed by an EU established Notified Body (or the technical file prepared by the UK Notified Body transferred to and adopted by an EU Notified Body). This is a complex area and if it affects you directly, you would be well advised to take advice from a UK based conformity assessment body as they will be well versed on your best route to conformity assessment that will be recognised in the EU.

 

Can you repeat what was said about Titanium oxide?

If you are supplying goods which contain Titanium dioxide (e.g. many paints contain titanium dioxide) there will be new labelling requirements which come into force on 1 October 2021 (I wrongly said 9 September 2021 in the webinar but in fact that date was subsequently revised and is now 1 October 2021). The new labelling requirements are set out here.

 

Will commercial building need an energy certificate and will it need to be displayed at the facility?

TM44 assessments are required for air-conditioning systems with a rated output of over 12 kW, which does include commercial buildings. The report certificate does not need to be displayed.

There is a separate requirement for buildings with a total useful floor area of over 250m2 that is occupied by a public authority and is frequently visited by the public to have a Display Energy Certificate (DEC) which is required to be displayed in a prominent place visible to the public.

 

Plastic Packaging, do importers have to pay 100% of the fee?

Our current understanding of the upcoming Plastic Packaging Tax is that both manufacturers and importers will have to pay the tax at 100% for chargeable packaging. 

 

 

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