Chemicals Still Out of Control Due to Poor Implementation

Ten years after coming into force, Europe’s flagship chemicals legislation, REACH, has shown great potential for improving the protection of human health and the environment. However, the corporate takeover of different processes, poor interpretation of the Regulation and opposition from the European Commission and several member states have hampered its full implementation and development.

Over the last two decades, the EU has become a global frontrunner in regulating chemicals, and the approval of REACH back in 2006 was considered an international landmark. The Regulation went significantly further than other legislations by introducing new groundbreaking principles, such as ‘no data, no market’, substitution, building on the precautionary principle and placing the burden of proving the safety of chemicals on companies.

Since its approval, many countries around the world, such as South Korea, Malaysia, Serbia , Turkey and China, have adopted REACH-like legislations. Several countries, including Switzerland, Canada, Japan and New Zealand, have shown a keen interest in learning from REACH. And Iceland, Liechtenstein and Norway, among others , directly apply the Regulation.

Net benefits

Despite the heavy criticism and opposition from the chemical industry that its approval caused ten years ago, REACH has shown its worth. An Austrian competent authority study on its costs and benefits concluded that the law’s implementation has resulted in net benefits. REACH is efficient from an economic point of view and beneficial for the environment and the wellbeing of workers. A survey by Eurometaux revealed that 60% of companies recognise its benefits in helping them to communicate to consumers the hazards and risks of the substances they manufacture, and to become more proactive on chemicals management. Even Cefic has stated that the Regulation is functioning relatively well.

Despite severe shortcomings in the process, the registration of chemicals under REACH is giving rise to better knowledge of the substances used in Europe. To comply with its obligations, companies have gained a better understanding of the chemicals they are handling, their hazards and risks, and thereby improving risk management measures and increasing substitution.

REACH is also stimulating substitution globally. The candidate list has become a worldwide reference for substitution, and even industry considers it the main driver for innovation. The REACH authorisation process is also improving risk management in companies applying for authorisation and public access to information.

However, although we have more information on chemicals, available on Echa’s website, throughout the supply chain and to consumers, this still remains very low quality. The information on chemical hazards, uses and exposure is extremely poor; on uses and exposure it is lacking for most substances and on hazards is completely outdated and incomplete, due to shortcomings of the legal text, but mainly through lack of proper implementation by the agency. The improvement of data quality is an issue that needs to be addressed urgently.

Also consumers continue to demand to know which chemicals are contained in products they are exposed to on a daily basis. The right to know about substances of very high concern in consumer products is actually the ‘right to ask’ or ‘the fight to know’, since article 33 of the Regulation has proven insufficient and its implementation is very poor.

Enhancing substitution

REACH potential for enhancing substitution has not been fully developed. The Commission, some member states and Echa are blocking the Regulation’s full potential to improve substitution by granting authorisation to all applications by default, even if alternatives are available. This is undermining the authorisation process, hampering innovation and penalising companies that have created safer substitutes. In short, such an approach is sending a very negative signal to the market. And the Commission’s decision to slow down the inclusion of substances in the candidate list and introduce an additional (risk-based) screening process – risk management option analysis (RMOA) – is causing a bottleneck and putting the burden back on member states.

The substitution principle needs to be strengthened to boost a more innovative and less toxic economy in the EU. Substitution could be sped up with better implementation of the polluter pays principle and the application of economic incentives.

Circular economy

REACH should be improved in order to serve a circular economy. To ensure materials, articles and consumer products can be safely reused and recycled, hazardous chemicals should be prevented from entering the economy. Information on the chemical content of material cycles should be available throughout the supply chain to consumers and to waste management companies. Restriction and authorisation processes need to be accelerated and no exemptions, derogations or transitional periods to restrictions or authorisations should be given for recycled materials.

The implementation of the groundbreaking principles that REACH introduced is lacking. The main principle of REACH – no data, no market – is not being applied, as Echa provides registration numbers, and in turn access to the market, to all registration dossiers by default, even to those that are incomplete, inadequate or irrelevant.

The burden of proof has not been shifted to industry. The low quality information provided by industry in the registration dossiers, in particular on uses and exposure, shifts the burden to member state authorities and to Echa committees to complete the information needed for the development of subsequent REACH processes (for example candidate listing, restriction, authorisation, evaluation).

Although REACH provisions are underpinned by the precautionary principle, the Commission and many member states are not applying it when taking decisions on restrictions or granting authorisations. Even Echa seems to consider that the principle does not apply to its activities.

Enforcement transparency

There is also a lack of transparency on enforcement activities, completeness and compliance checks of registration dossiers, substance evaluations or decisions on confidentiality claims. Transparency is one of the pillars of democracy. Without it citizens’ right to know, participation and access to justice is undermined.

After ten years of REACH, chemicals are still out of control and this is mainly due to its poor implementation. We need an EU that works for people by protecting their health and environment from toxic chemicals and that promotes innovation in safer chemicals. The Commission, REACH member state authorities and Echa should be taking note of this.