The REACH regulation on chemicals is one of the most ambitious laws ever to make it into the EU’s rule-book. Any company that makes, imports or uses a chemical, whether it is for a motor car or a tooth-brush, will have to pay attention to REACH – or the Registration, Evaluation, Authorisation and Restriction of Chemicals regulation, to use its full name. But since REACH came into force nearly three years ago, few have been happy with the way it has been put into practice.
Chemical companies say that the legislation is too complex. This sounds like a routine complaint, but Candido García Molyneux, a lawyer at Covington & Burling, does not think this charge is exaggerated. “REACH is probably one of the most complex pieces of legislation in EU environmental law,” he says.
First, REACH is “a closed system” that attempts to cover all chemicals and every link in the supply chain. The scope of its ambition makes “loopholes and errors” more likely, he says. Second, REACH contains numerous demanding deadlines, but authorities have limited resources to oversee the work: “The authorities cannot cope with the requirements of REACH, because they do not have the resources.” Finally, an extra level of complexity is added because responsibility for REACH is divided between two European commissioners, making interpretation of the law “extremely political”.
The problem of shared competence was exposed by a three-year dispute between the European Commission’s environment and industry departments over how to interpret REACH provisions on the most toxic chemicals. This was only resolved in March when Janez Potocnik, the European environment commissioner, and Antonio Tajani, the European industry commissioner, broke the deadlock over how to interpret the law in three tricky areas.
The Commission departments had clashed over which chemicals posed risks of causing cancer or genetic mutations or of harming reproduction, and should be included in a ‘substances of very high concern’ list. They also disagreed on how to re-draft guidance on persistent, bio-accumulative and toxic substances to clear up confusion in the text, as well as over clarifying the criteria for authorising chemicals.
For companies, the main focus now is to register many of their chemicals with the European Chemicals Agency in Helsinki by the end of November. If companies miss this deadline, they will be unable to use the chemicals.
To speed up the process, companies are allowed to work together and file common applications through ‘substance information exchange forums’ (SIEF). To date, these forums exist for around 2,448 chemicals. This is a new approach for companies that are more used to competing than collaborating and not everyone finds it easy.
REACH “is obliging companies to work together in a way we have not done in the past”, says Erwin Annys of Cefic, a European chemicals association. Companies have to be careful not to give away protection of their intellectual property rights, as well as respecting competition rules on not forming cartels, he explains.
Possibly the biggest hurdle is getting small businesses into the system. Thousands of “micro-small businesses” are at risk of missing the deadline, simply because they may not know exactly how the law applies to them, says Guido Lena at the European Association of Craft, Small and Medium-sized Enterprises, a pan-European group. Knowledge at national level is limited. “The legislation is incredibly complicated and difficult to understand. It is difficult to find someone with an overview at national level,” he says. If small companies miss a deadline to register their products, this could affect retailers and manufacturers that use or sell products using unregistered chemicals (so-called downstream users).
For chemicals-safety campaigners, the problems are rather different. Greenpeace emphasise that the current rate of progress in implementing REACH means that it could take 30 years for the EU to even consider “substances of high concern” that pose risks of cancer, genetic mutations or harm to reproduction. Phasing such chemicals out might take 100 years, according to Greenpeace.
The organisation is equally concerned that Commission and agency staff are failing to use the legislation as it was intended. One of the big innovations of REACH is that it requires industry to prove that their products are safe, a reversal of the old position where regulators had to prove that something was dangerous. But the Commission and the agency are still working under “the old-style model”, argues Jorgo Riss, Greenpeace’s European director. “The agency is putting a lot of burdens on their own shoulders,” he says.
All of this will ensure that there will be plenty of issues to discuss when the Commission reviews the legislation in the next two years.
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