A trade deal with the US could lower standards for cosmetics, toys and many other consumer products
22 October 2020
The risks from a trade deal with the US are not limited to chlorinated chicken and hormone-pumped beef.
A US-UK trade deal could also result in the import of lower quality consumer products from the US containing chemicals currently banned or restricted in the UK.
Until the end of this year, the UK falls within the EU’s REACH (Registration, Evaluation, Authorisation and restriction of Chemicals) Regulation, which is managed by the European Chemicals Agency. While not perfect, this is the best and most advanced system for regulating chemicals in the world. The aim of chemicals regulation is to try and establish which of these chemicals pose serious risks to our health and/or the environment and to put in place measures to ensure that they are used safely, or not at all.
But we now stand at a cross-roads.
Will the Government agree a pragmatic trade deal with the EU and a ‘level playing field’ provision that would prevent the UK regressing from high EU standards? The extent to which the UK choses to align with high EU standards will affect, and limit, the room for manoeuvre for closer regulatory cooperation with the weaker and less protective US system.
The EU system is not perfect, but the gulf between it and the US is particularly wide on chemicals.
Under the US Toxic Substances Control Act, the burden of proof falls on the regulator to demonstrate proof of harm. Under REACH, it’s on the companies seeking to bring a chemical to market, that have to generate enough data about it to demonstrate safety.
In the US the regulator needs to show a chemical presents an ‘unreasonable’ risk of injury to health and the environment, making it very difficult to control harmful chemicals. The EU has a more effective system, which says that some chemicals that are particularly hazardous should not be used in broad groups of applications such as cosmetics and toys.
These differences become clear when it comes to regulating cosmetics.
While the EU cosmetics regulations include, for example, restrictions on Carcinogens, Mutagens and Reproductive Toxins and on others known to provoke allergic reactions or skin sensitization, in the US, the regulator needs prior evidence that an unreasonable risk exists for each substance before it can even start its own testing.
This gives the regulator, the US FDA, very little pre-market power to require testing of, or even to review, cosmetic ingredients. As a result, the FDA has restricted only 11 substances or groups of substances for use in cosmetics and the EU has banned 1623. For example, the EU has more thoroughly restricted the use of some phthalates and parabens in cosmetics, unlike the US.
The US-Mexico-Canada Agreement is seen as a template for future trade deals with the US. This agreement includes fairly extensive regulatory cooperation provisions on cosmetics along the US ‘market first, regulate later’ approach.
If UK trade negotiators bow to US demands, the UK might have to accept some US products containing chemicals banned or restricted in the EU and it could even result in aspects of a much weaker US system getting imported into the UK.
Last week, the EU published its Chemical Strategy that could set Europe on a new, more toxic-free path and contained proposals for phasing out the most harmful substances from consumer products, including from cosmetics. The UK should aspire to keep pace with the most advanced chemicals regulatory system in the world as it continues to improve.