Banning PFAS: is the Commission still committed?  

To understand the laws of nature, scientists observe nature and derive their theory from their observations. To learn about the laws of the EU, one would be ill-advised to observe the European Commission and conclude from their actions. Fortunately, legal obligations can be read directly from the Official Journal.  

Around PFAS, the (in)famous forever chemicals rightly getting a lot of attention currently for their effects on humans and the environment, observations of such clashes between regulation and reality have left scientifically-minded observers aghast. While the Commission has long promised action to avoid additional PFAS pollution, action has been sluggish and legal obligations have been disregarded.  

Three bans (technically: restrictions) under the REACH legislation are currently in the making: in chronological order, one on C6 substances (or “PFHxA”, an important subclass of PFAS used in e.g. raincoats, paper to wrap greasy foods, or fire-fighting foams), one on PFAS in fire-fighting foams, and the most famous “universal” ban (“uPFAS”, which intends to ban all remaining PFAS, including fluoropolymers and gaseous PFAS, with exceptions for some uses). The most advanced one is now to be finalised: the one on C6 PFAS – or rather, what survived the Commission’s axe, as we explain in a recently published report. The Commission resorted to omissions, odd interpretations and open misquotes to explain only some of their cutbacks, which filled seven pages when the EEB revealed and analysed them.  

This is actually what the law says: the scientific committees – RAC, evaluating the hazards and risks, and SEAC, looking at socio-economic impacts of the ban – formulate an opinion, detailing and explaining the exact conditions of the proposed ban (which uses, by when, which exceptions). This opinion is then sent “without delay” to the Commission, which has three months to translate this into legal text. This text proposal is in turn submitted to a committee in which the EU Member State representatives discuss and vote on the Commission’s proposal. Where the proposed legal text “diverges […], the Commission shall annex a detailed explanation”. That all sounds clear and fool-proof.  

This is what really happened: ECHA sent the scientific opinion to the Commission six months after being adopted. The Commission took over a year instead of three months to propose legal text – such delays are regrettably rather common. This text fails to ban many uses and slashes reporting requirements, in stark contradiction with the measures proposed by the scientific committees. On top of this, the Commission forgot the annex with the detailed explanation. This would not have happened with the laws of nature, to say the least.  

Why should the scientific committees spend months analysing a proposal, collecting evidence, weighing pros and cons, and making recommendations and justifying them? If the Commission heavy-handedly trims the scientific opinions without justifications being shared, this raises the question about the practical value of the scientific committees. It also raises the question why we need a law if even the Commission does not follow it.  

The next disappointment is already looming: the ban on PFAS in fire-fighting foams, the second of the three restrictions. Fire-fighting foams have caused massive contamination; only last week the Belgian region of Wallonia was shaken by a drinking water scandal that can be traced back to fire-fighting foam containing PFAS. They deserve restricting at last.  

However, the fire-fighting foams restriction adds no measures to what the C6 restriction proposed (before the Commission’s intervention), and it even weakens many of them – yet it cost ECHA staff and many other people months of work. The EU’s action also comes later and is slower and more complicated than in progressive States in the US, as detailed in this report (section 7).  

What will the Commission do to the proposed measures once they are on their desk? We can only hope that the Commission will remember their legal role, honour the work of RAC and SEAC, and protect people and planet. The Commission delayed and delayed the promised revision of the underlying REACH regulation. This revision should have improved among others the restriction processes, but would not affect ongoing files, including the uPFAS restriction, as the EEB explains in this publication.  

And by the way, the Commission could also correct the course on C6 with an improved proposal: close to the scientific opinions, and with logical, truthful, and transparent justifications for diverging. It’s not too late yet.