Larry A. Watts 
The European Commission (EC) has just published its new framework for monitoring and regulating hazardous chemicals. Part of the ‘Chemicals Strategy for Sustainability’ – a key aspect of the European Union’s (EU) zero pollution ambition – this comprehensive ‘Restrictions Roadmap’ aims to protect the environment and human health by banning groups of toxic substances. It has been hailed as the biggest ever ban on toxic chemicals, with around 12,000 substances falling within the scope of the new restrictions roadmap.
In the EU, the import and manufacture of chemicals is regulated by Regulation (EC) No 1907/2006 (the REACH Regulation). In force in the Member States since July 2007, it provides for the registration, evaluation, authorization and restriction of substances. It is the most extensive chemical register in the world.
Under Article 68(1) of the REACH Regulation, chemicals which “present an unacceptable risk to human health or the environment. may be restricted if companies cannot satisfy the burden of proof by demonstrating their security. In October 2021, some 200 substances were restricted under REACH.
While regulations help protect consumers from certain harmful substances, figures from the World Health Organization (“WHO”) still suggest that pollutants cause two million deaths a year. [1] Not only are they linked to cancers, hormonal disruptions, reproductive toxic disorders and diabetes in humans, but species such as killer whales face the extinction of half their global population due to concentrations of a toxic chemical, PCBs, at 100 times the recommended safety level. . [2] Scientists now indicate that the “planetary threshold” for chemical pollution has been crossed and predict that without regulatory reform, toxic substances have the ability to cause the collapse of global ecosystems.[3]
Released in April 2022, the Restrictions Roadmap aims to “maximize the reduction of unacceptable chemical risks” by using “broader restrictions”, “grouping of substances” and addressing a “wider range of issues”. The Roadmap on Restrictions is the final part of the Chemicals Strategy and is part of the EU’s response to this chemical pollution challenge.
Restrictions
Scheduled to start in the next two years, the restrictions roadmap will use the provisions contained in the REACH regulation to harmonize the management of chemical risks and move towards the zero pollution objective of the European Green Deal. This goal will be achieved through several new features:
Restrict substance groups
For the first time, the EC targets entire chemical groups. This marks a significant change from the previous policy and emphasis on ensuring regulation keeps pace with industry developments.
By banning the use of groups of chemicals, the European Chemicals Agency (ECA) seeks to phase out “regrettable substitution”, a method that effectively neutralizes regulatory efforts. This is a “cynical and irresponsible tactic”, says Tatiana Santos, head of chemical policy at the European Environmental Bureau (EEB), “to replace the most harmful banned chemicals with equally harmful ones. who are not yet on the regulatory radar”. [4] With a new industrial chemical created, on average, every 1.4 seconds, this larger brush pool approach has the potential to mitigate any efforts to avoid regulatory enforcement.
Using a flexible “drop-down list”
By 2030, the EEB estimates that an additional 5,000 to 7,000 chemicals will be restricted. This will be a consequence of the “living list” of restrictions, designed by the EC and composed of three “pools”. In these pools, the substances are distributed according to their relative dangerousness and the stage of any restriction measures already proposed.
As more information is collected by the EC, ECHA and Member States, the existing pools will change and the rolling list will be regularly updated. This will continue until 2027, when the research will be consolidated in formal revisions to the REACH regulation.
Location in UK
As the UK moves beyond EU chemicals regulations, its key principles have been retained in the UK’s post-Brexit REACH regulation. In force since 31 December 2020 and governed by the UK Health and Safety Executive, failure to comply with these regulations may result in a fine or imprisonment.
In the UK, however, there has been little information about potential reform. Although some reports suggest there may be a regulatory divergence from the EU framework, stakeholders will have to await the outcome of Defra’s statutory review of the UK REACH regulation to find out whether the EC example will be followed.
Described by European political leaders as the “boldest detox we’ve ever seen”, [5] the restrictions roadmap represents the beginning of a more aggressive restrictive intervention in the chemical industry. For consumers, and indeed for the general population, the most obvious benefit is safety. Many chemicals listed as hazardous on the living list currently have widespread uses in society, including flame retardants, bisphenols, PVC plastics and PFAs. Called “eternal chemicals,” PFAs are found in products as diverse as single-use diapers, makeup, food packaging and children’s play areas. For companies that manufacture or use chemicals, the impacts could be significant: trade bodies predict that the new restrictions could reduce the industry’s annual turnover by more than 25%. [6] To stay ahead of regulatory changes, companies should closely monitor the evolving list and adapt their supply chains and end products accordingly to avoid fines, lawsuits, or civil lawsuits.
For all stakeholders and potential litigants, the tentative deadlines included in the rolling list can be a particularly useful resource. As the EC, ECHA and Member States begin to investigate chemical groups, the expected dates for the submission of any restriction dossiers will be publicly recorded. These can provide valuable information on future regulations and the time needed to make the necessary adjustments before these chemicals are restricted. As more and more toxic substances are restricted, we anticipate a likely increase in claims arising from product liability or environmental law.
EU chemicals strategy
With special thanks to co-author Eleanor Dodd.
