New EU Chemicals Strategy Published Amid Concerns on EU-UK Policy

On 14 October, the European Commission unveiled a new EU-level chemicals strategy. Intending to chart a long-term vision for EU chemicals policy, the overarching goal of the strategy is a toxic free environment “where chemicals are produced and used in a way that maximizes their contribution to society including achieving the green and digital transition, while avoiding harm to the planet and to current and future generations.”

Laudable as this vision is, the publication of the strategy comes at a time when industry groups, and notably the European Chemical Industry Council (Cefic), are concerned by what is seen as a mounting risk of divergence in chemicals legislation and policy between the EU and the UK after the Brexit transition period ends. This article provides a summary account of the new EU chemicals strategy before turning to consider the concerns of industry, especially those voiced by Cefic in recent weeks.

The New Strategy 

Published as a European Commission Communication, “Chemicals Strategy for Sustainability: Towards a Toxic-Free Environment” is a 25-page document that offers a broad-brush approach to EU-level chemicals regulation in the years to come. As a strategy, the Communication is largely concerned with expounding upon five principles. Each principle is as listed below, with some brief supporting commentary from RINA:

– Innovating for safe and sustainable EU chemicals. The intent here is to transition to chemicals that are “safe and sustainable by design”. To this end, the European Commission will develop criteria to define what it means by safe and sustainable chemicals, while also identifying and investing in design skills, establishing support networks, and revising legislation (e.g. industrial emissions legislation is singled out for revision). An aspiration is raised that “Recycled in the EU” becomes a global benchmark, something that is to be fulfilled on the back of EU efforts to “minimize the use of substances of concern in products and recycled materials”. How this is to be achieved in legislative terms is not made explicit though: it seems it will be a combination between REACH and, interestingly, ecodesign – or at least ecodesign when repackaged in the new guise of the “Sustainable Product Policy Initiative”. Economic incentivization is part of the thinking in relation to this principle too; the Commission will be financing R&D programmes in the coming years, with the development and deployment of advanced materials in sectors including the electronics industry considered of much importance.

– Stronger EU legal framework to address pressing environmental and health concerns. An intent to strengthen existing EU legislation on the part of the European Commission should come as no surprise. Within the strategy, the focus is upon “extend[ing] the generic approach to [chemicals] risk management to ensure that consumer products do not contain chemicals that cause cancers, gene mutations, affect the reproductive or the endocrine system, or are persistent and bioaccumulative.” This could lead to some legislative revisions in the years ahead, under the General Product Safety Directive for instance. Significantly, the exposure of humans and the environment to endocrine-disrupting chemicals (EDCs) is deemed as requiring specific attention. Among other actions, the European Commission has stated that it will use its right of legislative initiative to establish legally binding EDC hazard identification. This will be based on the definition provided by the World Health Organization, build on criteria already developed for pesticides and biocides, and applied across all relevant legislation. Not only this, the Commission is to propose a comprehensive set of actions to address the use of Per-and polyfluoroalkyl substances (PFAS) and mitigate for existing contamination. For example, it is to be banned in all fire-fighting foams.

– Simplifying and consolidating the legal framework. This is a sound principle to set, but whether it will truly be delivered upon is another matter. Perhaps of most interest is the stated intention that the Commission will “reform the REACH authorization and restriction processes based on key findings from its practical implementation.” There will be a crackdown on regulatory non-compliance too, with the Commission asserting that it will:

• Strengthen the principles of “no data, no market” and the “polluter-pays” under REACH, by requiring compliance of all registration dossiers and revoking the registration numbers in case of non-compliance;
• Target known areas of high risk of non-compliance, in particular online sales, imported articles, classification and labeling and restrictions;
• Extend the scope of action of the European Anti-Fraud Office for coordination and investigation, to tackle the circulation of illicit chemical products in the EU;
• Under the Market Surveillance Regulation (2019/1020), establish uniform conditions and frequency of checks for certain products where specific risks or serious breaches of applicable Union harmonization legislation have been continuously identified.

– A comprehensive knowledge base on chemicals. Here the European Commission asserts that “the EU is still lacking a comprehensive information base on all substances placed on the market and on their overall environmental footprint.” To counteract this, the Commission wishes to further develop the science-policy interface while taking specific actions that include:

• Extending the duty of registration under REACH to certain polymers of concern;
• Assessing how to best introduce information requirements under REACH on the overall environmental footprint of chemicals, including on emissions of greenhouse gases;
• Amending REACH information requirements to enable an effective identification of substances with critical hazard properties, including effects on the nervous and the immune systems; and
• Amending REACH information requirements to enable identification of all carcinogenic substances manufactured or imported in the EU, irrespective of the volume.

– Setting the example for the globally sound management of chemicals. Advocacy is probably the key word to characterize the European Commission’s thoughts on this: it wants to see existing international instruments better implemented while leading by example, for instance by ensuring that hazardous chemicals banned in the EU are not produced for export, including by amending relevant legislation as needed.

Concerns of Industry 

Various trade associations at the pan-European and national levels have responded to the publication of the strategy, giving praise while also signaling concerns in press releases and other communications.

Broadly, it would appear that the new compliance, enforcement and innovation proposals documented within the strategy are welcomed. This stands to reason: responsible, law-abiding businesses will always want a level playing field when it comes to regulation, also for those who flout the law to be caught and punished. Innovation is of perennial appeal, particularly when the financing is there to make R&D projects viable, and at scale. However, significant concerns have been voiced, particularly on the thorny subject of potential EU-UK regulatory divergence.

Speaking as a witness at the European Parliament Environment Committee’s public hearing on “Prospects and perils for the environment, public health and food safety in the future EU-UK relationship” before the strategy went public, Cefic Director General Marco Mensink asserted that introducing more demanding EU chemicals regulation to coincide with the end of the Brexit transition period would mean “Brexit starts with different chemicals regulations, which is actually the worst scenario.” Looking ahead to 1 January 2021, Mensink foresees “two different systems on the day we start” unless the European Commission, in implementing its newly published strategy, “change the rules by first maybe cooperating with the UK so we keep the rules for as long as possible the same.”

Outlook 

Regardless of ongoing EU-UK trade deal negotiations, the European Commission’s new chemicals strategy is here to stay and will see legislative revisions in, for example, REACH, CLP and GPSD, while the Sustainable Products Initiative looks set to be a vehicle for EU chemicals regulation in the years ahead too. This is all interesting and fairly clear-cut. What happens with UK REACH and Britain’s approach to chemicals management, including whether it is politic to run in accord with – or else depart from – the EU’s strategy is, however, a different matter. We wait and see.

For further information, see:

• Chemicals Strategy for Sustainability Towards a Toxic-Free Environment
• Cefic Welcomes New Enforcement And Innovation Proposals In New Chemical Strategy For Sustainability But Warns ‘Missed Opportunity’ And Uncoordinated Approach Risk Undermining EU ‘Green Deal’ And Climate Goals
• ENVI Hearing: Prospects and Perils for the future EU-UK relationship

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