Corporate Social Responsibility (IVOR nr. 77) 2010/8.3.1:8.3.1 Right to information for consumers

Corporate Social Responsibility (IVOR nr. 77) 2010/8.3.1

8.3.1 Right to information for consumers

Documentgegevens:

Mr. T.E. Lambooy, datum 17-11-2010

Datum: 17-11-2010
Auteur: Mr. T.E. Lambooy
JCDI: JCDI:ADS368302:1
Vakgebied(en): Ondernemingsrecht (V)

One of the novelties of REACH is the introduction of a consumer right to information about dangerous chemicals, or as they are called in the Regulation 'Substances of Very High Concern' (SVHCs). According to article 57 of REACH, a chemical substance (or part of a group of chemical substances) qualifies as an SVHC when it has one of the following characteristics: (1) it is carcinogenic; (2) it is mutagenic; (3) it is toxic for reproduction; (4) it is persistent, bio-accumulative and toxic according to the criteria set out in Annex XIII ('PBT' substances); and/ or (5) it is very persistent and very bio-accumulative according to the criteria set out in Annex XIII ('vPvB' substance). Generally, SVHCs are substances that can have serious consequences for human health (like cancer) or a detrimental impact on the environment.

SVHCs are subject to authorisation by the ECHA. Without authorisation, SVHCs included on the so-called 'candidate list' cannot be used on the market.1 In the framework of the authorisation procedure, the Commission has required the authorised national ' REACH Competent Authorities' or the ECHA to prepare dossiers for the identification of SVHCs. Proposals to nominate a chemical substance as an SVHC are published on the ECHA website. Interested parties can submit comments within 45 days, e.g. scientific evaluation. If there are no comments, the substance will automatically be included in the ' candidate list'.2 However, if comments are received, ECHA will return the dossier to the Member State Committee that initially proposed this chemical substance. The Member State Committee consists of members appointed by each Member State. The Member State Committee needs to reach consensus as to whether the substance meets the requirements of article 57. If such consensus cannot be reached, the Commission will prepare a draft proposal on the substance and a final decision will be taken in accordance with the 'comitology procedure'3 set out in article 133 of REACH.4

If an SVHC has been processed in an 'article'5 (this refers to a product), additional obligations arise for the producer, importer and supplier of the article.6 Firstly, the supplier has to provide the recipient of the article (industrial or professional users and distributors) with sufficient information to allow for the safe use of the article.7If no specific information is necessary for safe handling, the supplier still has to communicate, at a minimum, the name of the chemical substance.8 Secondly, any other information regarding the substance available to the article supplier, has to be communicated to consumers. Vide article 33(2):

on request by a consumer, any supplier of an article containing a substance meeting the criteria in Article 57 and identified in accordance with Article 59(1) in a concentration above 0.1 % weight by weight (w/w) shall provide the consumer with sufficient information, available to the supplier, to allow safe use of the article including, as a minimum, the name of that substance. The relevant information shall be provided, free of charge, within 45 days of receipt of the request.9

In October 2008, the first candidate list of SVHC with titles of hazardous substances was published. The last update of the list was on 18 June 2010. It will continue to be regularly updated with new SVHCs. At present, it contains 38 substances.10 Today, a European consumer can request information regarding items such as an electronic toothbrush or shampoo. He can submit his request to the retailer or the brand manufacturer, and ask whether the product contains any of the chemical substances on the candidate list. A template letter is contained in Annex 8.2 in fine.11

Toon alle voetnoten

Voetnoten

Voetnoten

Chemsec, International Chemical Secretariat, 'REACH step by step'. See: http://www.chemsec.org/chemsec/eu-chemicals-policy/reach/reach-step-by-step, accessed on 28 June 2010.

Publication of the ECHA candidate list of SVHCs is only the first phase of the authorisation procedure. The second phase will include a far-reaching evaluation ofthese substances before any decision by the Commission will be taken (note 9 supra [REACH] [Art. 133]) and the substances are included in Annex XIV's 'List of Substances Subject to Authorisation'.

Under the 'comitology procedure', the Commission adopts decisions for the implementation of its legislation. The proposals for these decisions must be approved by Member States by a qualified majority vote. In accordance with article 202 of the Treaty establishing the European Community (ECT), the Commission is assisted by a committee during the implementation process of EU legislation, in line with the procedure that is referred to as comitology. The committee consists of representatives of Member States and is chaired by the Commission.

United Kingdom Government Leaflet, 'REACH - Substances of Very High Concern', 2009, at: http://www.hse.gov.uk/reach/svhc.pdf, accessed on 24 June 2010.

I.e. 'An object which during production is given a special shape, surface or design which determines its function to a greater degree than its chemical composition', see note 9 supra [REACH] [Art. 3(3)].

European Chemical Agency, Guidance in a Nutshell: Requirements for Substances in Articles, 2009. Available at: http://guidance.echa.europa.eu/guidance2_en.htm, accessed on 24 June 2010.

Note 9 supra [REACH] [Art. 33(1)].

Note 9 supra [REACH] [Art. 33(2)].

10.

ECHA, Candidate List of Substances of Very High Concern for authorisation, updated on 18 June 2010, at: http://echa.europa.eu/chem_data/authorisation_process/candidate_list_table_en.asp?sortby=Date_inclusion&order=descending, accessed on 29 June 2010.

11.

Note 11 supra [Chemicals Health Monitor].