Businesses to face tightened ‘forever chemicals’ regulations in the UK

The UK POP regulations implement certain international treaties into the law in the UK and ensure they remain relevant post Brexit. These international treaties, including the Stockholm Convention and the Aarhus Protocol, aim to restrict the production and manufacture of POPs. The regime provides that a company or responsible individual, such as its director, who produces, places on the market, or uses a designated POP in breach of the regulatory prohibition is guilty of a strict liability offence.

Designated POPs include perfluorooctane sulfonate (PFOS) or perfluorooctanoic acid (PFOA), both of which are also so called “forever chemicals”, the class of approximately 10,000 fluorinated chemicals more formally known as poly- and perfluoroalkyl substances (PFAS). PFAS degrade very slowly, with some forms taking more than 1,000 years to degrade, and are used in the manufacture of a great range of consumer products.  Whilst the POPs and PFAS regimes overlap to an extent, not all POPs are also PFAS. 

Earlier this month, the UK government confirmed that it intends to make certain changes to the UK POP regulations following a consultation conducted last year. Katie Hancock of Pinsent Masons said that the proposed changes are likely driven by the increasing public and political will to consider restrictions or prohibitions on chemicals which are potentially hazardous, including PFAS chemicals.

In the government’s response to the earlier consultation, it committed to making several changes which respondents have stated will have a bearing on the risk of PFAS contamination. However, no clear timeline has been provided, with amendments to take place “when parliamentary time allows”. 

“With a general election on the horizon and other matters engaging political parties currently, it is difficult to see any of the proposals being taken forward in the short to medium term. However, it does underline the continued interest in PFAS substances in the UK,” Hancock said.

The UK’s position so far, according to Hancock, has been to take a cautionary approach, remaining mindful of the impact on potential prohibitions on other aspirations, including in relation to climate change. There are also concerns over the fact that not all PFAS substances necessarily have the same toxicity, with the general line being taken at governmental level appearing to be to follow the scientific evidence as much as possible. 

The changes to be adopted upon parliamentary approval include new waste concentration limits and new maximum concentration limits for certain PFAS chemicals, as well as amendments to existing limits for PFOA, PCP, and HCB and expiry dates for existing specific exemptions for PFOA.

The move to amend the UK POP regulations comes shortly after new initiatives were confirmed by the Health and Safety Executive (HSE) in tandem with the Environment Agency (EA) to restrict the use of PFAS to make cleaning products, consumer goods and firefighting forms.

In the EU, consultations and reviews are also being conducted to tighten the regulation of PFAS through the proposed revision of EU regulation on the registration, evaluation, authorisation and restriction of chemicals (REACH).

In the meantime, the EU has agreed on the provisional terms of a new packaging regulation in the EU, which includes a ban on “food contact packaging containing intentionally added PFAS” in concentrations above certain limit values. 

There is also increasing activity in the US.  Most recently, the US Environmental Protection Agency (EPA) has established legally enforceable levels for several PFAS known to occur individually and as mixtures in drinking water.

The UK government has said that it will continue to review other potential amendments to the UK POPs regulations as its next steps.

“Care is required to ensure any prohibitions or restrictions are easily understood, with duplication avoided. This will require close stakeholder consultation at all stages, as well as adequate notice of changes,” Hancock said.