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Corporate Social Responsibility (IVOR nr. 77) 2010/8.3.6
8.3.6 Preliminary observations on REACH
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS370645:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
EC, 'Questions and Answers on REACH', July 2007, at: http://ec.europa.eu/environment/chemicals/pdf/qa.pdf, accessed on 24 June 2010.
Note 11, supra [Chemicals Health Monitor].
Note 11, supra [Chemicals Health Monitor].
M. Breddy, 'First REACH Hazardous Chemicals List is a Drop in the Ocean', 2008, at: http://www.greenpeace.org/eu-unit/press-centre/press-releases2/First-REACH-hazardous-chemicals-list-is-a-drop-in-the-ocean, accessed on 24 June 2010.
T. Musu, 'REACH Authorisation: Will the Mountain Give Birth to a Mouse?', March 2009, at: http://hesa.etuirehs.org/uk/newsletter/files/NWL_35_UK_p23.pdf, accessed on 24 June 2010.
German Federal Environmental Agency, Chemicals: Federal Environment Agency proposes inclusion of five anthracene oils as subject to EU authorisation, Press Release 054/2009, p. 1, at: http://www.umweltbundesamt.de/uba-info-presse-e/2009/pe09-054_chemicals_ federal_environment_agency_proposes_inclusion_of_five_anthracene_oils_as_subject_ to_eu_authorisation.htm, accessed on 24 June 2010. As the Vice President of the German Federal Environmental Agency (UBA), Dr Thomas Holzmann has underlined: 'Some Member States are hesitant and so far only a few Members have taken advantage of the great opportunities provided by REACH to do more to protect the environment and health'.
Note 80, supra [Press Release 054/2009] p. 1.
EP, ' Parliament adopts REACH new EU chemicals legislation and new chemicals agency', press release, 13 December 2006, at: http://www.europarl.europa.eu/sides/getDoc.do7pub-Ref=-//EP//TEXT+IM-PRESS+20061213IPR01493+0+DOC+XML+V0//EN&languag-e=EN, accessed on 24 June 2010.
Greenpeace International, 'Cleaning Up our Chemical Homes Changes the Market to Supply Toxic-Free Products', February 2007, pp. 15-16, at: http://www.greenpeace.org/raw/content/ international/press/reports/chemical-home-company-progress.pdf, accessed on 28 April 2010.
J. Kanter, 'European Union chemical plans are criticized',in International Herald Tribune, Business, 1 November 2006.
Although REACH is a significant step forward in closing the safety gaps and increasing transparency in respect of information relating to chemicals in products, there are still points of concern for consumers:
The main criterion of substances' registration is the massive quantity of those substances. Only substances manufactured or imported in volumes starting at 1 tonne need to be registered. The same substances in low quantities do not fall within the REACH application except when they are identified as an SVHC. Consequently, if a particular substance has never been registered in the EU because of its low production volume, and has never been tested in any other way, "its hazardous properties may not be known".1 The dilemma concerning nanomaterials illustrates that one should not be too optimistic about REACH.
Only facts related to substances have to be assessed and dispersed. This excludes information concerning products, especially regarding their full composition. Moreover, the assessment does not have to address the production process.2 CSR concerns, e.g. possible human rights abuses and environmental impacts in relation to the production of substances or products, are not covered by REACH.
The fact that the burden of carrying out risk assessments in respect of chemicals has been placed on the producer is positive. However, it has also been noted that a great deal of responsibility is entrusted to the industry.3 Therefore, the success of REACH directly depends on how the private sector manages the safety system, and how companies discharge their responsibilities to inform consumers about any dangers and safety aspects related to chemicals in products.
The information that consumers may request relates only to SVHCs. Presently, only 30 substances are on the SVHC candidate list. NGOs have reacted critically to this list: "the first-ever list is a welcome start, but it is a drop in the ocean when compared to the hundreds of well-known dangerous substances presently used in products every day across Europe."4 Only six States have put forward candidate substances for the SVHC list. The expansion of the list depends on the motivation of the Member States and the Commission. The reason for the brevity of the first list is mainly political. Consumers and industries might see the candidate list as a ' blacklist' of unwanted substances. Hence, the Commission and Member States supported the idea of keeping the list brief 'to test the system'.5 One can argue that such reasoning is too pragmatic, considering the urgency of the situation.6 German and other EU experts have already identified 400 chemicals that are mutagenic, teratogenic and generally harmful to health and to the environment.7 At this point in time, it is up to the Member States to put forward all hazardous substances and to include these in the SVHC list.
SVHCs are still allowed to be used, even if safer alternatives or technologies are available. During the REACH negotiations, this issue was debated heatedly. The EP voted in favour of a requirement to substitute an SVHC by a safer option as a part of the authorisation clause.8 However, in the end, as part of a political compromise, the EU Council decided to continue to allow the use of these hazardous substances, even if they could be replaced by safer alternatives.9
To summarise REACH in the framework of the consumer's right to information, the following observations can be made. It took a long time for the EU to succeed in enforcing a powerful chemical Regulation that aims to protect consumers' health and the environment. Many compromises in the final version of REACH had to be made because of the pressure exercised by powerful lobbyists representing industries. Discussing the impact of REACH on consumers, two contrasting opinions exist. The first, usually expressed by members of 'green' (environmentaly engaged) parties and NGOs, is that the Regulation was watered down and would do little to improve human health.10 The second position is that REACH is a great EU success because it is the first time that adequate protection against hazardous substances has been provided. Both positions contain an element of truth. On the one hand, REACH erased the distinction between 'new' and 'old' chemicals, i.e. covering most of the substances used in the market. The Regulation places the responsibility to assess the risks related to the use of chemicals, and to communicate these, on the industry. REACH has also given consumers a voice, by obliging producers and retailers to provide them with information regarding any SVHCs contained in a product. On the other hand, REACH mandates the registration of chemicals based on their quantity, except when they qualify as SVHCs. Hence, chemicals in small quantities, which can also pose a risk to human health and the environment, might never become known to the public. The same is true for nanomaterials. Moreover, the information that consumers are entitled to is very limited as it only concerns 38 SVHCs. The right of consumers to information is clearly ' balanced' with the interest of industry. Last but not least, hazardous substances contained in everyday products will continue to be used, even if safer alternatives exist. The lack of knowledge concerning exposure to chemicals in everyday consumer products (such as textiles and computers) remains a serious problem, as well as the consumer information gap in respect of CSR aspects of the production process.