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ECHA Urged to Follow Through with Database of Products Containing Hazardous Substances

By 5 January 2020, the European Chemicals Agency (ECHA) is mandated to establish a database of articles that contain so-called Candidate List substances and make this information available to waste treatment operators and consumers.  In a recent letter addressed to ECHA, a group of NGOs has called on ECHA to disregard recent alleged attempts from the industry and to “remain determined” in developing and implementing this product database. Hong Kong sellers should be aware that, once it enters into being, such database will list all kinds of articles that are placed on the market by businesses, including toys, household equipment and clothing, which are used by customers including consumers, if they contain a hazardous substance listed on the REACH Candidate List.

Article 9 of the revised Waste Framework Directive (WFD), which entered into force in July 2018, has mandated ECHA with the creation of a database of articles (articles are, in general, finished products) that contain substances found on the Candidate List of Substances of Very High Concern.  ECHA is tasked with establishing this database by 5 January 2020, creating IT tools to allow any EU suppliers of articles to submit the required information to ECHA by 5 January 2021, and to provide access to the database to waste treatment operators, and – most pertinently – to consumers.

ECHA’s draft plan sets out the three main objectives of the database and maps out how it intends to proceed. First, it aims to decrease hazardous waste generation by supporting the substitution of substances of concern in articles, placed on the EU market. Second, the database will allow authorities to monitor the use of substances of concern in articles and initiate appropriate actions over the whole life-cycle of articles. Third, it will also provide information to further improve waste treatment operations.

More importantly, the draft plan also foresees a change from the current ‘substance-centric’ approach under Article 7(2) of the REACH Regulation concerning notifications of Candidate List substances. In other words, today an EU producer or importer of articles containing a Candidate List substance has to submit only one notification for each Candidate List substance for all articles containing that substance.

For the development of the new database, ECHA is proposing to adopt a different approach, namely an “article-centric” approach.

With this approach, articles suppliers would have to submit a notification for each individual article. If an article contains several Candidate List substances, all of those substances would be notified together, as part of the notification for the article supplied.

ECHA’s draft plan has been met with criticism.  A joint industry position paper issued by representatives of EU articles manufacturers, assemblers, importers and distributors condemn ECHA’s approach for being “too unspecific”, which, they argue, “will turn out being both target-oriented and impracticable” and which “thus cannot be expected to fulfil the objectives of the circular economy”. The industries concerned encourage ECHA to “reconsider” its approach and vouch instead for an “alternative and focused approach” taking into account “individual sector-specific solutions” while considering the complexity and durability of products.

An open letter has been sent by 41 NGOs in response to the joint position paper highlighting that a “responsible industry reaction is to help put [the database] in place rather than asking ECHA to reconsider its creation”. The NGOs point out that ECHA has an obligation to establish the database, as outlined in the WFD. 

In addition, NGOs point to the fact that the database concerns mostly information that the industry has been legally obliged to have, keep and disseminate for more than 10 years under the EU’s REACH Regulation. According to the NGOs, the industries concerned have so far systematically underestimated the amount of information they were supposed to collect and share and have insufficiently complied with their obligations. Such alleged blatant failures cannot, they claim, now work in their favour by arguing that providing this information constitutes a new burden.

The NGOs insist that ECHA should remain determined in setting a meaningful and useful database while calling on industry to become “champions of transparency and worldwide leaders.’ If not, in opposing requirements moulded under EU legislation, the industry (the NGOs argue) cannot retain legitimacy in presenting their companies as responsible enterprises.

Content provided by Picture: HKTDC Research
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