30 November 2022 • 6 minute read
Environment, Health, Safety and Product Compliance: November round-up
- The Retained EU Law (Revocation and Reform) Bill has received its second reading in the House of Commons. It remains to be seen however whether the new Prime Minister will continue with the intention to sunset much of EU-derived UK law by the end of 2023 after reviewing the scale of the challenge. In his initial leadership campaign, Sunak had however stated a desire to "keep Brexit safe" with 'snappy videos' of EU laws being shredded on an industrial scale.
- Recent rulings by the ASA in relation to CBD products underline the clear position that only health claims authorised on the Great Britain Nutrition and Health Claims Register can be made in respect of adverts promoting foods or food supplements.
- A contractor has been fined £600,000 (with a fine and non-custodial penalty imposed on its director) following a pro-active HSE inspection which followed numerous failures by the company to implement fire safety measures which were the subject of prior HSE interventions.
- The EU has given its final approval to common charger rules meaning that by 2024 a USB-C port will become mandatory for a range of electronic devices, including mobile phones, tablets and headphones. It remains to be seen whether the UK introduces a similar approach.
- In single use plastics (SUP) law, the Department of Agriculture, Environment and Rural Affairs (DAERA - NI) has provided a summary of responses to its consultation on proposals relating to SUPs in Northern Ireland with a policy-decision due by the end of 2022, following the lead of Scotland and Wales. There are differences (albeit very minor differences) in approach across the UK and organisations operating across all 4 jurisdictions will need to keep this under review.
- The Head of the EA has welcomed the opportunity to review the UK regulatory system (much of which has its origins in EU law) but stressed the need for a rigorous debate as to any reform of the effective status quo. He did however give examples of legislation which could be repealed or reformed including legislation with its genesis in the Floods Directive which no longer make sense in the context of UK only application.
- The Head of the Food Standards Agency (FSA) has expressed significant concern about the potential sunsetting of 150 pieces of EU derived UK food law. The Chartered Trading Standards Institute (CTSI) has (with similar concern) urged the government to delay the timetable for the process relating to consumer law.
- The number of prosecutions brought by the Environment Agency (EA) has reduced significantly which in sync with stated government proposals to significantly increase the maximum value of civil penalties (to £250 million) demonstrates an emerging trend that the EA are preferring alternatives to enforcement in the criminal courts.
- Numerous fines of £500,000 have been handed down in court following HSE prosecutions relating to workplace transport and plant related failures which continue to be regular areas of breach.
- The Sentencing Council is holding a consultation on draft proposals relating to the totality principle and how to pass just and proportionate sentences in the event of multiple offences/offending.
- A company has been convicted of an offence under section 3 of the Health and Safety at Work etc. Act 1974 (HSWA) after a HSE investigation found that an injured member of public was able to access an operational site and operational machinery underlining a trend of increased enforcement relating to site security, trespass and safety risks posed to members of the general public.
- A company has been fined over £2 million following a fatal incident and failures to implement adequate controls relating to work activities in combustion chamber.
- The government has (as part of a written parliamentary question) restated its intention to introduce a single mandatory recycling labelling scheme which will introduce mandatory recyclability labelling (recycle, do not recycle) on all product packaging. The new UK-wide packaging regulations are expected to enter into force late in 2023.
- Charities received more than £418,084 in enforcement undertakings (EUs) between 1 June and 30 September from companies who had breached environmental law which underline the key role EUs play in the regulator’s enforcement toolkit.
- The Court of Appeal has held that a sentence of 15 months' imprisonment (suspended for 18 months), imposed on the sole active director of a company, following a guilty plea to offences contrary to the Environmental Permitting Regulations 2016 (EPR) was neither manifestly excessive nor wrong in principle. It was also held that the judge at first instance had been entitled to find that the offending was deliberate and had properly applied the relevant sentencing guideline. A directors' disqualification order was reduced to reflect the director's previous good character and guilty pleas.
- Businesses can continue to use the CE marking until 31 December 2024.
- Businesses can affix the UKCA marking and include importer information for products from EEA countries on an accompanying document or label until 31 December 2027.
- Conformity assessment activities for CE marking undertaken by 31 December 2024 can be used as the basis for the UKCA marking until 31 December 2027.
- This has followed a recent trend of extended deadlines including the following:
- Prepacked foods - foods placed on GB market can continue to only hold an EU name and address until the end of 2023.
- Medical devices with CE marking will be acceptable until (at least) the end of June 2024.
- Cosmetic products can continue to include only the details of an EU based responsible person until 31 December 2025.
- It is of course important to acknowledge that the leniency permitted in respect of marking and labelling does not mean that there does not need to be a UK based entity, that said UK entity will not be acting as e.g. importer where it places goods on the GB market for the first time, that said entity will not have other obligations (e.g. relating to safety) nor that it will not be the subject of enforcement in the UK where it fails to comply with those obligations.