The Aerosol Dispensers Regulations 2009

• Citation: S.I. 2009/2824
• Sections: 96

Section 1 Citation and Commencement

These Regulations may be cited as the Aerosol Dispensers Regulations 2009 and shall come into force on 29th April 2010.

Section 2 Interpretation

(1) In these Regulations—

“ aerosol dispenser ” means any non-reusable container made of metal, glass or plastic and containing a gas compressed, liquefied or dissolved under pressure, with or without a liquid, paste or powder, and fitted with a release device allowing the contents to be ejected as solid or liquid particles in suspension in a gas, as a foam, paste or powder or in a liquid state;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“Directive” means Council Directive 75/324/EEC on the approximation of the laws of the Member States relating to aerosol dispensers;

“ relevant aerosol dispenser ” means an aerosol dispenser which does not have a maximum capacity of—

less than 50ml; or

greater than that specified—

in point 3.1 of Schedule 1A, in relation to metal aerosol dispensers (1000ml);

in point 4.1.1 of Schedule 1A, in relation to aerosol dispensers with plastic coated or permanently protected glass containers or plastic aerosol dispensers which cannot splinter on bursting (220ml); or

in point 4.2.1 of Schedule 1A, in relation to aerosol dispensers with unprotected glass containers or plastic aerosol dispensers which may splinter on bursting (150ml) ;

“ UK marking ” means the marking in the form set out in Annex 2 of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 .

(1A) Schedule 1A reproduces the provisions of the Annex to the Directive with amendments to correct deficiencies in assimilated law.

(1B) A reference to a provision of Schedule 1A is a reference to the equivalent provision of the Annex to the Directive as set out in that Schedule.

(2) The reference in regulation 3(7)(c)(ii) and (iii) to the test method specified in point 6.1.4.1(b) and (c) of Schedule 1A is a reference to a test method specified in point 6.1.4.1(b) or (c) which is —

(a) a test method approved under point 6.1.4.3(a) of the Annex to the Directive , when these Regulations are made unless paragraph (3) applies and where in relation to that test method the other conditions in point 6.1.4.3 of that Annex are satisfied; or

(b) such other test method which has been approved in writing by the Secretary of State for the purposes of these Regulations and where in relation to that test method the conditions in point 6.1.4.3 of Schedule 1A are satisfied.

(3) This paragraph applies where the Secretary of State has specified in writing that a test method which is approved under point 6.1.4.3(a) of the Annex to the Directive when these Regulations are made, is not approved for the purposes of these Regulations.

Section 3 Requirements for the marking of aerosol dispensers

(1) Paragraphs (2) to (8) set out the requirements which must be complied with under regulation 5 in order to mark an aerosol dispenser or where paragraph (1A) applies, on a label affixed to, or a document accompanying, the aerosol dispenser with the UK marking .

(1A) For a period of seven years beginning with IP completion day, the UK marking may be affixed to—

(a) a label affixed to the aerosol dispenser; or

(b) a document accompanying the aerosol dispenser.

(2) The aerosol dispenser is a relevant aerosol dispenser.

(3) The person responsible for the marketing of the aerosol dispenser has complied with the obligations set out after the heading to point 2 (general provisions) and immediately before point 2.1 of Schedule 1A .

(4) The aerosol dispenser complies with the general provisions relating to construction set out in point 2.1 of Schedule 1A .

(5) The aerosol dispenser complies with the provision relating to the volume of the liquid phase set out in point 2.3 of Schedule 1A .

(6) The aerosol dispenser complies with the special provisions set out in points 3, 4 and 5 of Schedule 1A in the case of metal, glass and plastic dispensers respectively.

(7) The aerosol dispenser—

(a) meets the test specified in point 6.1.1 of Schedule 1A in the case of empty containers;

(b) meets the tests specified in point 6.1.2 and 6.1.3 of Schedule 1A in the case of empty metal and protected glass dispensers respectively; and

(c) satisfies one of the following subparagraphs—

(i) it meets the test method specified in point 6.1.4.1(a) of Schedule 1A and the dispenser is not of a type referred to in point 6.1.4.2 of that Schedule ;

(ii) it meets the test method specified in point 6.1.4.1(b) of Schedule 1A and the dispenser is not of a type referred to in point 6.1.4.2 of that Schedule ;

(iii) it meets the test method specified in point 6.1.4.1(c) of Schedule 1A .

(8) Unless paragraph (9) applies, the aerosol dispenser is marked in characters which are visible, legible, indelible and (unless it is unlikely that the dispenser will be used in the United Kingdom) in the English language, with—

(a) the following information—

(i) the name and address or trade mark of the person responsible for marketing the aerosol dispenser;

(ii) code markings enabling the filling batch to be identified;

(iii) the details referred to in point 2.2 of Schedule 1A; and

(iv) where an aerosol dispenser—

(aa) contains flammable components as defined in point 1.8 of Schedule 1A; and

(bb) is not classified as extremely flammable or flammable in accordance with the classifications set out in point 1.9 of Schedule 1A;

the quantity of flammable material contained in the aerosol dispenser must be clearly stated on the label in legible and indelible wording in the following form—“X % by mass of the contents are flammable”;

(b) the net contents by volume expressed in metric units; and

(c) if the person responsible for marketing the dispenser sees fit, the net contents by weight expressed in metric units.

(9) This paragraph applies where—

(a) the capacity of the dispenser does not exceed 150ml;

(b) the dispenser is too small to be marked with the information referred to in paragraph (8); and

(c) that information is marked on a label attached to the dispenser.

Section 3A Power to amend Schedule 1A

(1) The Secretary of State may by regulations amend Schedule 1A where the Secretary of State considers it necessary to do so in order to take technical progress into account.

(2) The power to make regulations made under paragraph (1) includes power—

(a) to make different provisions for different cases; and

(b) to make such supplemental, consequential and transitional provisions as the Secretary of State considers appropriate.

(3) Regulations made under this regulation are to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Section 4 Prohibition of sale or supply of unmarked relevant aerosol dispensers

(1) Subject to paragraph (2), a person shall not supply or have in his possession for supply a relevant aerosol dispenser which is not marked with the UK marking or the symbol “3” (inverted epsilon).

(2) Where regulation 3(1A) applies, paragraph (1) does not apply where the UK marking is affixed to—

(a) a label affixed to the aerosol dispenser; or

(b) a document accompanying the aerosol dispenser.

Section 5 Prohibition of sale or supply of non-compliant marked aerosol dispensers

A person shall not supply or have in his possession for supply—

(a) an aerosol dispenser which—

(i) is marked with the UK marking where all the requirements referred to in regulation 3 relating to that aerosol dispenser are not complied with;

(ia) has a label affixed to it, or a document accompanying it, which is marked with the UK marking, where—

(aa) the requirements of regulation 3 are not complied with; or

(bb) the requirements of regulation 3 are complied with but the period referred to in regulation 3(1A) has elapsed; or

(ii) is marked with the symbol “3” (inverted epsilon) where either—

(aa) all the requirements of regulation 5A(3) are not complied with; or

(bb) all the requirements of regulation 5B are not complied with; or

(b) an aerosol dispenser which—

(i) is marked with a mark so closely resembling the UK marking or the symbol “3” (inverted epsilon) as to be likely to deceive; or

(ii) has a label affixed to it or a document accompanying it which is marked with a mark so closely resembling the UK marking as to be likely to deceive.

Section 5A Obligations that are met by complying with obligations in the Directive

(1) In this regulation any reference to an Article or an Annex is a reference to an Article or an Annex of the Directive.

(2) Paragraph (5) sets out the requirements which must be complied with in order to mark an aerosol dispenser with the UK marking.

(3) Paragraphs (5) and (6) set out the requirements which must be complied with under regulation 5(a)(ii)(aa) in order to mark an aerosol dispenser with the symbol “ 3 ” (inverted epsilon).

(4) Where the requirements in paragraph (5) are complied with—

(a) the requirements of regulation 3(1) are disapplied;

(b) the requirements of regulation 3(2) to (7) are treated as being satisfied;

(c) the reference in regulation 5(a)(i) to regulation 3 is to be read as a reference to paragraph (5) and regulation 3(8) and (9).

(5) The requirements referred to in paragraphs (2) and (3) are that—

(a) the aerosol dispenser is a relevant aerosol dispenser;

(b) the relevant aerosol dispenser—

(i) complies with the provisions relating to construction and equipment set out in point 2.1 of the Annex;

(ii) complies with the provisions relating to the volume of the liquid phase set out in point 2.3 of the Annex;

(iii) complies with the special provision set out in points 3, 4 and 5 of the Annex in the case of metal, glass and plastic dispensers respectively;

(iv) meets the tests specified in point 6.1.1 of the Annex in the case of empty containers;

(v) meets the test specified in point 6.1.2 and 6.1.3 of the Annex in the case of empty metal and protected glass dispensers respectively; and

(vi) satisfies one of the following paragraphs—

(aa) it meets the test methods specified in point 6.1.4.1(a) of the Annex and the dispenser is not of a type referred to in point 6.1.4.2 of the Annex;

(bb) it meets the test method specified in point 6.1.4.1(b) of the Annex and the dispenser is not of a type referred to in point 6.1.4.2 of the Annex;

(cc) it meets the test method specified in point 6.1.4.1(c) of the Annex;

(c) the person responsible for the marketing of the relevant aerosol dispenser has complied with the obligations set out after the heading to point 2 (general provisions) and immediately before point 2.1 in the Annex.

(6) The requirements referred to in paragraph (3) are that—

(a) the relevant aerosol dispenser—

(i) complies with the requirements of Article 8(1) (or where permitted by that Article, its label complies with those requirements);

(ii) complies with the requirements of Article 8(1a);

(iii) bears, or where permitted by Article 8(1), has on its label the information required by Article 8(1)(d) and 8(1a) prepared in or translated into English; and

(b) the person responsible for the marketing of the relevant aerosol dispenser has affixed the symbol “ 3 ” (inverted epsilon) in accordance with Article 3.

Section 5B Qualifying Northern Ireland Goods

(1) Paragraph (2) sets out the requirements that must be complied with under regulation 5(a)(ii)(bb) to mark an aerosol dispenser with the symbol “3” (inverted epsilon);

(2) The requirements referred to in paragraph (1) are that—

(a) the requirements of regulation 3 as it applies in Northern Ireland have been complied with in relation to the aerosol dispenser; and

(b) the aerosol dispenser is qualifying Northern Ireland goods.

(3) In this regulation “ qualifying Northern Ireland goods ” has the meaning given to it in in regulations made under section 8C(6) of the European Union (Withdrawal) Act 2018.

Section 6 Contravention of these Regulations

(1) For the purposes of the Consumer Protection Act 1987 these Regulations, with the exception of regulation 3(8)(b) and (c), are safety regulations made under section 11 of that Act.

(2) Regulation 3(8)(b), which is not made under that Act, shall be treated as if it was a safety regulation made for all purposes under section 11 of that Act.

(3) Notwithstanding section 12(5) of the Consumer Protection Act 1987 any person guilty of an offence under that section of contravening the prohibition in regulation 5(a) by reason only of a failure to comply with regulation 3(8)(b) shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale or to a term of imprisonment not exceeding 3 months or both.

Section 7 Amendments

Subject to regulation 8, the Schedule (which contains revocations and an amendment) shall have effect.

Section 8 Transitional provision

(1) Regulations 4 and 5(a) do not prohibit the supply of, or possession for supply of, an aerosol dispenser which, before 29th April 2010, was marked with the reversed epsilon marking in accordance with the provisions of the Aerosol Dispensers (EEC Requirements) Regulations 1977 .

(2) Paragraph (1) does not apply after 28th October 2010.

Section 9 Review

(1) The Secretary of State must from time to time—

(a) carry out a review of the regulatory provisions contained in these Regulations, and

(b) publish a report setting out the conclusions of the review.

(2) The first report must be published before 12th February 2023.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015 (“the 2015 Act”) requires that a review carried out under this regulation must, so far as is reasonable, have regard to how the Directive is implemented in other member States.

(5) Section 30(4) of the 2015 Act requires that a report published under this regulation must, in particular—

(a) set out the objectives intended to be achieved by the regulatory provision referred to in sub-paragraph (1)(a),

(b) assess the extent to which those objectives are achieved,

(c) assess whether those objectives remain appropriate, and

(d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(6) In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the 2015 Act (see section 32 of that Act).

Section 1 Aerosol Dispensers (EEC Requirements) Regulations 1977

The Aerosol Dispensers (EEC Requirements) Regulations 1977 are revoked.

Section 2 Aerosol Dispensers (EEC Requirements) (Amendment) Regulations 1981

The Aerosol Dispensers (EEC Requirements) (Amendment) Regulations 1981 are revoked.

Section 3 Aerosol Dispensers (EEC Requirements) and the Cosmetic Products (Amendment) Regulations 1985

The Aerosol Dispensers (EEC Requirements) and the Cosmetic Products (Amendment) Regulations are revoked.

Section 4 Aerosol Dispensers (EEC Requirements) (Amendment) Regulations 1996

The Aerosol Dispensers (EEC Requirements) (Amendment) Regulations 1996 are revoked.

Section 5 Legislative and Regulatory Reform (Regulatory Functions) Order 2007

(1) In the Schedule to the Legislative Reform (Regulatory Functions) Order 2007 , Part 3 is amended as follows.

(2) Under the heading “Consumer and Business Protection” omit the words “Aerosol Dispensers (EEC Requirements) Regulations 1977”.

Section 1

DEFINITIONS

Section 1

Regulation (EC) No 1272/2008

“ Regulation (EC) No 1272/2008 ” means Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on the classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC and amending Regulation (EC) No 1907/2006 .

Section 1 Pressures

“ Pressures ” means the internal pressures expressed in bars (relative pressures).

Section 1 Test pressure

“ Test pressure ” means the pressure to which an unfilled aerosol dispenser container may be subjected for 25 seconds without any leakage being caused or, in the case of metal or plastic containers, any visible or permanent distortion except as allowed under 6.1.1.2.

Section 1 Bursting pressure

“ Bursting pressure ” means the minimum pressure which causes the aerosol dispenser container to burst or rupture.

Section 1 Total capacity of the container

“ Total capacity of the container ” means the volume in millilitres of an open container up to the rim of the opening.

Section 1 Net capacity

“ Net capacity ” means the volume in millilitres of a filled and closed aerosol dispenser.

Section 1 Volume of liquid phase

“ Volume of liquid phase ” means the volume of the non-gaseous phases in the filled and closed aerosol dispenser.

Section 1 Test conditions

“ Test conditions ” means the values of test and bursting pressures exerted hydraulically at 20° C (± 5°C).

Section 1 Substance

“ Substance ” means substance as defined in Article 2(7) of Regulation (EC) No 1272/2008 .

Section 1 Mixture

“ Mixture ” means mixture as defined in Article 2(8) of Regulation (EC) No 1272/2008 .

Section 1 Flammable contents

Contents of aerosols shall be considered as flammable if they contain any component which is classified as flammable:

(a) flammable liquid means a liquid having a flashpoint of not more than 93°C.

(b) flammable solid means a solid substance or mixture which is readily combustible or may cause or contribute to fire as a result of friction; readily combustible solids are powdered, granular, or pasty substances or mixtures which are dangerous if they can be easily ignited by brief contact with an ignition source, such as a burning match, and if the flame spreads rapidly.

(c) flammable gas means a gas or gas mixture having a flammable range with air at 20°C and a standard pressure of 1.013 bar.

This definition does not cover pyrophoric, self—heating or water—reactive substances and mixtures, which shall never be components of aerosol contents.

Section 1 Flammable aerosols

For the purpose of these Regulations, an aerosol is considered as “non-flammable”, “flammable” or “extremely flammable” according to its chemical heat of combustion and mass content of flammable components, as follows:

(a) the aerosol is classified as “extremely flammable” if it contains 85% or more flammable components and the chemical heat of combustion exceeds or is equal to 30 kJ/g;

(b) the aerosol is classified as “non-flammable” if it contains 1% or less flammable components and the chemical heat of combustion is less than 20 kJ/g;

(c) all other aerosols will be submitted to the flammability classification procedures set out in 1.9.1. to 1.10. or shall be classified as “extremely flammable”. The ignition distance test, the enclosed space test and the foam flammability test shall comply with point 6.3.

Section 1 Flammable spray aerosols

In the case of spray aerosols, the classification shall be made taking into account the chemical heat of combustion and on the basis of the results of the ignition distance test, as follows:

(a) if the chemical heat of combustion is less than 20kJ/g:

(i) the aerosol is classified as “flammable” if ignition occurs at a distance equal or greater than 15 cm but less than 75 cm;

(ii) the aerosol is classified as “extremely flammable” if ignition occurs at a distance of 75 cm or more;

(iii) if no ignition occurs in the ignition distance test, the enclosed space test shall be performed and in this case, the aerosol is classified as “flammable” if the time equivalent is less than or equal to 300 s/m 3 or the deflagration density is less than or equal to 300 g/m 3 ; otherwise the aerosol is classified as “non-flammable”;

(b) if the chemical heat of combustion is equal to or more than 20 kJ/g, the aerosol is classified as “extremely flammable” if ignition occurs at a distance of 75 cm or more; otherwise the aerosol is classified as “flammable”.

Section 1 Flammable foam aerosols

In the case of foam aerosols, the classification shall be made on the basis of the results of the foam flammability test.

(a) The aerosol product shall be classified as “extremely flammable” if:

(i) the flame height is 20 cm or more and the flame duration is two seconds or more; or

(ii) the flame height is 4 cm or more and the flame duration is seven seconds or more.

(b) The aerosol product which does not meet the criteria in (a) is classified as “flammable” if the flame height is 4 cm or more and the flame duration is two seconds or more.

Section 1 Chemical Heat of Combustion

The chemical heat of combustion ΔH c shall be either determined by:

(a) acknowledged rules of technology, described e.g. in standards such as ASTM D 240, ISO 13943 86.1 to 86.3 and NFPA 30B, or found in the scientifically established literature; or

(b) applying the following calculation method:

The chemical heat of combustion (ΔH c ), in kilojoules per gram (kJ/g), can be calculated as the product of the theoretical heat of combustion (ΔH comb ), and a combustion efficiency, usually less than 1,0 (a typical combustion efficiency is 0,95 or 95%).

For a composite aerosol formulation, the chemical heat of combustion is the summation of the weighted heats of combustion for the individual components, as follows:

where:

ΔHc = chemical heat of combustion (kJ/g) of the product;

w i % = mass fraction of component i in the product;

ΔH c(i) = specific heat of combustion (kJ/g) of component i in the product.

The person responsible for the marketing of the aerosol dispenser has to describe the method used for determining the chemical heat of combustion in a document to be made readily available in English at the address specified on the label in accordance with regulation 3(8)(a)(i), if the chemical heat of combustion is used as a parameter for assessing the flammability of aerosols, according to the provisions of these Regulations.

Section 2 GENERAL PROVISIONS

Without prejudice to specific provisions of this Schedule on requirements related to the flammability and pressure hazard, the person responsible for the marketing of aerosol dispensers is under an obligation to analyse the hazards in order to identify those which apply to their aerosol dispensers. Where appropriate, this analysis shall include a consideration of the risks resulting from the inhalation of the spray ejected by the aerosol dispenser under normal and reasonably foreseeable conditions of use, taking into account droplet size distribution in conjunction with physical and chemical properties of the contents. The person responsible for the marketing of the aerosol dispenser must then design, construct and test it and, if applicable, draft special statements concerning its use, taking account of this analysis.

Section 2 Construction and equipment

The filled aerosol dispenser must be such that, under normal conditions of use and storage, it complies with the provisions of this Schedule.

Section 2

The valve must enable the aerosol dispenser to be virtually hermetically sealed under normal conditions of storage or transport and must be protected, for example by means of a protective cap, against any unintentional opening and any deterioration.

Section 2

There must be no possibility that the mechanical resistance of the aerosol dispenser can be impaired by the action of the substances contained in it, even during prolonged storage.

Section 2 Labelling

Without prejudice to Regulation (EC) No 1272/2008 , each aerosol dispenser must visibly bear the following and indelible marking:

(a) where the aerosol is classified as “non-flammable” according to the criteria of point 1.9, the signal word “Warning” and the other label elements for Aerosols Category 3 provided for in Table 2.3.1 of Annex I to Regulation (EC) No 1272/2008 ;

(b) where the aerosol is classified as “flammable” according to the criteria of point 1.9, the signal word “Warning” and the other label elements for Aerosols Category 2 provided for in Table 2.3.1 of Annex I to Regulation (EC) No 1272/2008 ;

(c) where the aerosol is classified as “extremely flammable” according to the criteria of point 1.9, the signal word “Danger” and other label elements for Aerosols Category 1 provided for in Table 2.3.1 of Annex I to Regulation (EC) No 1272/2008 ;

(d) where the aerosol dispenser is a consumer product, the precautionary statement P102 provided for in Part 1, Table 6.1 of Annex IV to Regulation (EC) No 1272/2008 ;

(e) any additional operating precautions which alert consumers to the specific dangers of the product; if the aerosol dispenser is accompanied by separate instructions for use, the latter must also reflect such operating precautions.

Section 2 Volume of the liquid phase

The volume of the liquid phase at 50°C must not exceed 90% of the net capacity.

Section 3 Capacity

The total capacity of these containers may not exceed 1000 ml.

Section 3 Test pressure of the container

(a) For containers filled at a pressure of less than 6.7 bars at 50°C, the test pressure must be equal to at least 10 bars.

(b) For containers filled at a pressure equal to or greater than 6.7 bars at 50°C, the test pressure must be 50% higher than the internal pressure at 50° C.

Section 3 Test pressure of the container

The pressure at 50°C in the aerosol dispenser must not exceed the values provided for in the following table, depending upon the content of gases in the aerosol dispenser:

Section 4 Plastic coated or permanently protected containers

Containers of this type may be used for filling with compressed, liquefied or dissolved gas.

Section 4 Capacity

The total capacity of these containers may not exceed 220 ml.

Section 4 Coating

The coating must be a protective envelope of plastic or other suitable material, intended to prevent the risk of flying particles of glass if the container is accidently broken, and must be so designed that there are no flying particles of glass if the filled aerosol dispenser, brought to a temperature of 20° C, is dropped from a height of 1.8 m onto a concrete floor.

Section 4 Test pressure of the container

(a) Containers used for filling with compressed or dissolved gas must resist a test pressure equal to at least 12 bars.

(b) Containers used for filling with liquefied gas must resist a test pressure equal to at least 10 bars.

Section 4 Filling

(a) Aerosol dispensers filled with compressed gas shall not be required to withstand a pressure of more than 9 bars at 50°C.

(b) Aerosol dispensers filled with dissolved gas shall not be required to withstand a pressure of more than 8 bars at 50°C.

(c) Aerosol dispensers containing liquefied gas or mixtures of liquefied gas shall not be required to withstand, at 20°C, pressures higher than those shown in the following table:

This table shows the pressure limits permitted at 20°C in relation to the percentage of gas.

Pressure limits for percentages of gas not shown in the table shall be extrapolated from it.

Section 4 Unprotected glass containers

Aerosol dispensers using unprotected glass containers shall be filled exclusively with liquefied or dissolved gases.

Section 4 Capacity

The total capacity of these containers may not exceed 150ml.

Section 4 Test pressure of the container

The test pressure of the container must be equal to at least 12 bars.