The UK enforcement regime for REACH

What does REACH require as regards enforcement?

Titles XIII and XIV of REACH require each Member State to appoint a Competent Authority (CA) and maintain an appropriate control system for enforcement. Member States were required to have an enforcement regime in place by 1 December 2008, which provides 'effective, proportionate and dissuasive' penalties for non-compliance. Results of inspections, monitoring and penalties are to be reported to the European Commission by 1 June 2010, and then at five year intervals.

REACH also recognises the need for high levels of co-operation, co-ordination and exchange of information between the Member States, the European Chemicals Agency (ECHA) and the European Commission regarding enforcement. It sets up a "Forum for Exchange of Information on Enforcement", which will coordinate harmonised enforcement projects and joint inspections. It will also develop working methods and tools for inspectors, identify enforcement strategies and develop an electronic information exchange procedure.

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How has the UK enforcement regime been developed?

In the UK, Defra has the policy lead on REACH and developed the enforcement arrangements, acting with the Department for Business, Innovation and Skills (BIS) and the Devolved Administrations for Scotland, Wales and Northern Ireland.

In developing the REACH enforcement regime, Defra led two public consultations on REACH enforcement. The first was during Spring 2007, and sought to establish the principles upon which an enforcement regime would be developed. This considered, amongst other things, whether enforcement of REACH should be carried out by a new regulator, but concluded that enforcement should be undertaken by existing enforcing authorities, using the powers generally given to those authorities, alongside their other regulatory activities. The second consultation, during Summer 2008, focused on the details of the draft enforcement legislation, as well as the administrative arrangements for the proposed enforcement regime. You can find more information on both consultations on Defra's website.

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The REACH Enforcement Regulations 2008

The enforcement regime for REACH has been implemented by the REACH Enforcement Regulations 2008. These Regulations apply to the UK and provide for the enforcement of REACH, by:

• allocating responsibility for REACH enforcement to a number of enforcing authorities;
• providing these enforcing authorities with the powers they need;
• requiring enforcing authorities to cooperate and share information with other bodies connected to REACH enforcement; and
• setting the offences and penalties for contraventions of REACH requirements.

The paragraphs below explore these areas in more detail.

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Who enforces REACH in the UK?

The authorities given enforcement responsibility by the REACH Enforcement Regulations 2008 are those with existing remits to protect human health, consumer safety, and the environment:

• the Health and Safety Executive (HSE);
• the Health and Safety Executive for Northern Ireland (HSENI);
• the Environment Agency (EA);
• the Scottish Environment Protection Agency (SEPA);
• the Northern Ireland Environment Agency (NIEA)
• the Department of Energy and Climate Change (DECC); and
• local authorities (LAs), as regards occupational health and safety and consumer protection (trading standards) issues.

The REACH Enforcement Regulations 2008 set out which enforcing authority is responsible for enforcing the listed REACH provisions, though broadly speaking:

• HSE, in its capacity as UK REACH CA, will enforce those duties in REACH concerning registration;
• HSE in Great Britain and HSENI in Northern Ireland will enforce supply related duties up to the point of retail sale, with local authority trading standards departments then responsible for consumer protection issues.
• A wide range of enforcing authorities will enforce use related duties, as per existing arrangements for enforcing health, safety and environmental legislation. The table below sets out which enforcing authorities are involved.

Enforcement of use related duties

	Environmental protection	Health and safety
England & Wales
Scotland
Northen Ireland
Offshore

Though not given an enforcement duty by the REACH Enforcement Regulations 2008, the following authorities also have important roles to play:

• the UK Border Agency (UKBA) is responsible for delivering risk based anti-smuggling controls at UK points of entry to detect illegal imports of prohibited and restricted goods. UKBA may provide assistance to the named REACH enforcing authorities by detaining goods at import for a maximum of two working days, either when requested to do so or in the event that UKBA have reasonable grounds to suspect that goods may be being imported which are in breach of REACH.
• HM Revenue and Customs (HMRC) is responsible for delivering the customs clearance function for imports from non EU countries and for operating the import customs declaration system. HMRC may disclose information obtained or held in the exercise of its functions relating to imports, to facilitate the exercise of a duty of an enforcing authority under the Enforcement Regulations.
• the Home Office & the Department of Health, Social Services and Public Safety: A key theme of REACH is the need to minimise the use of animals in testing and where possible to use suitable non-animal methods. In the UK, the Animals (Scientific Procedures) Act 1986 regulates any experimental or other scientific procedures that may have the effect of causing animals pain, suffering, distress or lasting harm. This Act is administered in Great Britain by the Home Office and in Northern Ireland by the Department of Health, Social Services and Public Safety. Licences will, if necessary, be amended to ensure REACH compliance is taken into account when projects are agreed for the conduct of animal tests, and appropriate conditions added to licences so that meaningful and informative records of these tests are maintained and made available for inspection.

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What are the arrangements for co-operation and coordination?

Co-operation and co-ordination within the UK

The REACH Enforcement Regulations 2008 require enforcing authorities to co-operate and share information with each other to facilitate compliance with, and the effective enforcement of, REACH. The Regulations also give enforcing authorities power to agree arrangements with each other to allow the carrying out of an enforcement duty by another authority. This means that there is flexibility for the most suitable enforcing authority to carry out enforcement in any particular case.

You can find out more about the arrangements put in place in the UK for cooperation and information sharing on the UK enforcement liaison page.

You can also read the strategy and guidance for REACH enforcement in the UK . This contains guidance for enforcing authorities on REACH enforcement, and sets the strategy for REACH enforcement in the UK.

Co-operation and co-ordination across the European Union

The Forum for Exchange of Information on Enforcement ('the Forum') is the principle mechanism for ensuring co-operation and co-ordination across the European Union.

You can find out more about the Forum, its responsibilities and its work programme on the EU enforcement liaison page.

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What powers do enforcing authorities have?

The REACH Enforcement Regulations 2008 give each enforcing authority the powers they need to carry out their responsibilities. These powers are not only for the purposes of inspection and investigation (such as powers of entry, powers to seize evidence etc) but also for formal enforcement of the legislation (for example, powers to serve various kinds of enforcement notice, or to prosecute offenders etc).

While the powers of each enforcing authority are all described in Schedules to the Regulations, they generally reflect those already used for the authority's other enforcement activities.

Each enforcing authority has its own enforcement policy which will set out the general principles and approach that its staff are expected to follow when making enforcement decisions. You can find out more about HSE's enforcement policy and approach by visiting the enforcement section of the HSE website.

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What are the penalties for non-compliance?

The REACH Enforcement Regulations 2008 provide that it is an offence for a person to contravene a 'listed REACH provision' or to cause or permit another person to do so.

The Enforcement Regulations allow for a person in breach of a listed REACH provision to be tried summarily (e.g. in Magistrates Courts) or on indictment (e.g. in Crown Courts). The same potential maximum penalty applies for each provision, namely up to the maxima permitted under the European Communities Act 1972. These are:

• up to £5,000 fine and/or up to three months imprisonment following summary conviction; and
• an unlimited fine and/or up to two years imprisonment following conviction on indictment.

The Enforcement Regulations also provide for a number of other criminal offences. These include obstruction of inspectors, providing false statements, failing to comply with enforcement notices, and so on. These additional offences are also the subject of penalties, which are the same as those above.

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How does REACH interact with other legislation about chemicals?

REACH imposes a variety of duties related to the manufacture, importation, supply and use of substances. At the same time, REACH provides that it applies 'without prejudice' to existing Community workplace and environmental protection legislation (other than that it repeals or amends). REACH will therefore operate alongside other regimes. It follows that compliance with one regime will not excuse a failure to comply with another.

Contact the REACH Compliance Team

You can contact the REACH Compliance Team:

• by email: CRDCompliance@hse.gsi.gov.uk
• by post: REACH Compliance, 2.3 Redgrave Court, Merton Road, Bootle, Merseyside, L20 7HS