A recent EEB examination of the chemicals control in Europe reveals that at the current pace the EU would need hundreds of years to adequately control all potentially harmful chemicals on its market. The EU needs to listen to experts and speed up chemicals regulatory processes without delay. Andreea Anca reports.
The Need for Speed report – Why it takes the EU more than a decade to control harmful chemicals and how to secure more rapid protections – is an unprecedented investigation conducted by the EEB into the time it takes the European Commission, the European Chemicals Agency and Member States to implement Europe’s main chemicals control laws seen as the world’s strictest control systems. EEB’s close look at the Classification, Labelling and Packaging of chemicals law (CLP) and each stage of the cornerstone Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation (REACH) reveals shocking findings that clearly illustrate the fact that the EU is too slow and unfit to prevent dangerous substances from penetrating the market, and so our daily lives. This might come as a surprise even to the officials at the very heart of the process, who may not be fully aware of how long the entire regulatory process takes.
All data analysed in this report comes from the European Chemical Agency (ECHA) files relating to the 1,109 chemicals regulated or currently still undergoing regulation under REACH and CLP since 2007, when REACH entered into force, and until 2022. Our analysis calculates the most frequent (median) time spent on each regulatory step and identifies bottlenecks and those responsible.
The current REACH is a set of legislative procedures that deals with the assessment and management of industrial chemicals, meant to speed up the control of dangerous chemicals after decades of fragmented and highly ineffective regulations. Since 2015, the EU brought to the chemicals regulation scene the CLP, as the only legislation responsible for identifying and communicating the hazardous properties of chemicals.
But despite the solid reputation of REACH and CLP, the EEB study shows that loopholes in the system cause huge delays, hampering the effective control of the 100,000 chemicals on the EU market today and continuing the exposure of people and the environment to the approximately 2,000 potentially dangerous substances.
This report reveals a stark contrast between the few short weeks it takes companies to gain access to the European market, usually based on little or unreliable hazard data, and the years or even decades it takes authorities to subsequently restrict chemicals once they learn these are causing serious harms to people and the environment.
It takes concerned officials around a decade to gain accurate data and build cases for control measures, a process industry regularly challenges in court. The redrawing from the market of substances of very high concern (SVHCs) could take up to 10 years, while these should be taken off the market without delay.
The ‘No data, No problem’ trap
Although companies routinely submit incomplete or flawed chemical hazard and exposure data, they still gain market access, disrespecting the ‘no data, no market’ rule. This is the ‘no data, no problem’ trap that blind-folds officials and shifts the tremendous effort of proving whether a product is safe from the manufacturer to the regulator.
Another impeding factor is the European Commission’s inaction. After ECHA’s lengthy and complex process to deliver scientific opinions, the Commission takes even longer, one year and ten months on average, to stamp and seal its decision. As such, almost half (45%) of all REACH and CLP decisions it is responsible for remain pending.
The absence of legally binding deadlines for the Member States and ECHA to conclude whether a substance used is potentially harmful, further hampers the process. As it is, it can take over 10 years to clarify the level of concern for a substance, from the point of a chemical’s registration to compliance checks and all the way to its evaluation.
The lack of legal accountability
National authorities draw conclusions and make recommendations on how to improve the control of chemicals but are not legally bound to act on these. The European Commission is, however, legally bound to provide improved regulatory proposals within three months after ECHA’s scientific assessment but it’s not held accountable if it fails to do so. In fact, the consistent failure of the leading Commission’s industry department (DG GROW) to meet the three-month deadline since the law came into force in 2007, builds up a strong case of legal non-compliance.
For people and nature, the many years it takes for the authorities to process these files translate into unnecessarily prolonged exposure. Meanwhile, profit-driven companies are free to use high volumes of chemicals without the necessary chemicals controls, and in some cases years without controls at all.
Call for action
Considering the findings of our investigation, in our view the EU should respect a series of key principles that would simplify the system and speed up regulations preventing unnecessary delays.
- Decisions must be legally bound to deadlines. There should be legal consequences such as market suspension when deadlines are not met.
- Apply the ‘no data, no market’ and ‘zero tolerance to non-compliance’ principles. The EU must stop firms blindfolding officials with non-compliant hazard and exposure data.
- Put protection before profits.
- Use a precautionary approach. Lower the level of evidence needed for authorities to identify and restrict the production and use of hazardous chemicals. Empower authorities to restrict chemicals when concerns are justified. The burden of proof to justify derogations must be on industry.
- Strengthen fast-track controls and the ban
- Establish the group approach as the default option to restrict chemicals. For example, define and apply the essential use concept to reduce the number of applications for Authorisation and derogations for Restriction.
- Make polluters pay by sanctioning companies and compensate for the damage caused by their non-compliant dossiers (e.g. when a substance is identified as harmful to reproduction after having been on the market for years).
The EEB calls for the urgent reform of REACH and CLP with updates that would provide the people and the environment with better protections against harmful chemicals.
More detailed recommendations can be found in the different sections of each process and in chapter 9 of the report.