The 27-nation European Union moved to adopt a huge body of climate and environment laws since a new team of top officials took the reins in 2019, but stalled chemical safety updates are a key exception that’s eluded their grasp.
An overhaul of the EU’s main chemical safety law, REACH (Regulation (EC) No 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals), was promised in 2020, but it hasn’t happened, and it’s unclear if it ever will.
The European Commission—led by the top commissioners responsible for proposing new EU laws—says an upgrade of REACH won’t be proposed before the terms of the current commissioners run out in October 2024.
The revision of REACH “needs sufficient time to be prepared and discussed, engaging with all relevant parties,” said Adalbert Jahnz, the commission’s environment spokesman. “Therefore, such [an] initiative cannot be presented at the end of a Commission mandate.”
New commissioners, who will be nominated by EU countries and will take office next year, won’t be bound by the promises made by the current officials. They have “no legal obligation to make a legislative proposal,” Jahnz said.
Jahnz referred to comments made in October at the European Parliament by Maros Sefcovic, the commission vice-president with overarching responsibility for REACH, who indicated that ensuring the supply of chemicals for green technologies was a major factor holding up the plan for a REACH revision.
The challenge in updating REACH was “how to find the balance we need to make sure we will be leaders in the future orientated technologies, in wind power, in battery storage, in chip making, in all these very important technologies, important for the green transition,” Sefcovic said.
EU nations, much like the US, have undertaken climate-focused efforts to transition to clean energy technologies. Much of that technology is reliant on chemicals that would fall under the regulations, complicating the process of overhauling REACH.
Attitudes to Overhaul
REACH regulates commodity chemicals used in the manufacture of products and other chemicals. Under it, companies are obliged to register with the European Chemicals Agency the substances they trade in, while the most hazardous chemicals can be banned or heavily restricted.
“In my experience, there is some support from industry for a revision of REACH, but not at any cost and in any form,” said Eléonore Mullier, a partner with Steptoe & Johnson in Brussels.
The REACH processes under which hazardous substances are identified, studied, and outlawed are seen widely as burdensome. Companies would be happy to see those overhauled.
“I can’t say the REACH revision is essential, but we would like to see in particular process improvements,” said Sylvie Lemoine, deputy director general of the European Chemical Industry Council, which is known by the French acronym CEFIC.
One part of the REACH revision promised by the commission was an update of the so-called authorization procedure in which hazardous substances are phased out, but companies can apply for authorizations for continued, specific uses if safety can be demonstrated.
Authorization has been grinding slowly because of “a multitude of applications for the use of small quantities of substances, unclear criteria for authorization and information gaps—in particular for uses where competitors have already implemented alternatives—as well as unclear information in applications,” said Gerard McElwee, a partner with Fieldfisher in Brussels.
Companies and green campaigners agree that REACH processes are problematic.
“The current process is extremely lengthy and leaves up too many loopholes,” said Jutta Paulus, a German Green member of the European Parliament. “With the current rules, it would take hundreds of years to properly restrict all problematic substances.”
Authorization was “probably the process in REACH that crystallizes opinion. No one is happy with REACH authorization,” said Mullier.
Grappling With Grouping
There have been initiatives to speed up REACH processes within the current framework, but these have created their own problems.
In particular, there has been a move to assess the hazards of chemicals in groups, rather than individually. As well as speeding up identification of dangerous substances, this is supposed to prevent regrettable substitution in which a risky substance is replaced by a close alternative.
“Chemicals need to be regulated in groups to overcome the massive data gaps and to help companies to innovate towards truly safer alternatives,” said Stefan Scheuer, chief EU policy advocate with campaigners CHEM Trust.
But “the more substances you group, the more complex the assessment will be and the more derogations you will get,” said CEFIC’s Lemoine.
For example, consultations started in 2020 on a planned group restriction on bisphenols, proposed by Germany. But in August 2023, the planned restriction was withdrawn, because German authorities received so much information from the consultations, it was decided a fundamental rewrite of the restriction proposal was needed.
Current plans for a massive restriction on per- and polyfluoroalkyl substances (PFAS), which could amount to a ban on thousands of similar substances, could go the same way.
A consultation on the PFAS restriction, which closed in September, received a “staggering” number of comments, “in proportion to the massive scope,” said Steptoe’s Mullier.
“It is uncertain at the moment what will happen with the PFAS restriction proposal,” she said.
What is Essential?
The PFAS restriction was also intended to overlap with the REACH revision, in particular a definition of the “essential use” of a substance that the revision was supposed to bring in. The plan was for all non-essential uses of PFAS in consumer products to be banned.
Effective essential use criteria could be useful, for example, for speeding up the granting of exemptions from bans, said Lemoine. But if the criteria are not well-defined, they could further slow down processes by leading to arguments over whether, for example, investment is at stake, or if use of a hazardous chemical is necessary in an emissions-reducing application.
The commission said in 2020 that the essential-use criteria would be defined during 2021 and 2022, and the fact that they haven’t so far indicates “the level of ambition may have been too high,” Lemoine said.
The concept of essential use could introduce “an unprecedented and highly debated judgmental dimension which is distinct from science,” said Thomas Delille, a partner with Squire Patton Boggs in Brussels.
“It would be interesting to see if some disruptive concepts such as that of essential use would survive a change of commission,” he said.
The commission in 2020, in promising the REACH revision, also outlined other concepts that, when it came to actually drafting the revision, may have proved far more complex that initially thought.
The commission said it would introduce registration obligations under REACH for polymers, would amend the current registration obligations on monomer substances to include more detailed hazard information, would evaluate how the risks of chemical mixtures could be assessed, and would require chemical safety reports for substances traded in low volumes of 1 to 10 metric tons annually.
A “light notification” requirement on polymers could “help understand the size of the challenge” and would align with similar rules in Canada and Korea, said Lemoine.
But significant obligations would likely hit a barrier of lacking lab capacity, she said.
“Given that the ambitious approach of completely revising REACH appears to have stalled, we think a more nuanced revision focusing on, for example, specific polymers being subject to registration and not all,” is more likely, said Fieldfisher’s McElwee.
The expectation therefore is not that the REACH revision will be quietly dropped, after elections to the European Parliament in June 2024 and the appointment of new EU commissioners, but rather that it might make a return in scaled-down form.
“The idea of revising the whole REACH was never a realistic option, nor is it likely to become one,” said Delille. “REACH is not considered by the various stakeholders as a bad regulation, but rather a regulation that needs improvement and updating, after more than 15 years of application.”
“The chemical crisis and the concern from EU citizens will not go away just because the commission is changing. We are hopeful that the upcoming commission will be a forward-looking one, not afraid to drive through reforms,” said Theresa Kjell, senior policy adviser with ChemSec, which campaigns for phase-out of toxic chemicals.
Companies wanted clarity, said Lemoine. “As soon as we have a new commission, we need to know as early as possible if we get it and what we get.”