18 Oct 2018
European Commission Imposes Restrictions on Hazardous Chemicals in Clothing, Textiles and Footwear
By way of background, on 26 April 2018, the European Commission received support from the EU’s REACH Committee to take further action against hazardous chemicals known to cause cancer and reproductive health problems (see: European Commission Takes Further Action Against Hazardous Chemicals in Clothing, Textiles and Footwear).
As Hong Kong traders will be aware, the REACH Regulation - particularly its Annex XVII (concerning restrictions on the manufacture, placing on the market and use of certain dangerous substances, mixtures and articles) - imposes strict limitations on the use of hazardous chemicals in several commonly used consumer goods. Such goods include toys, clothing, footwear, leather products and articles made of plastic. The substances thus far restricted in specified articles include phthalates, azodyes, cadmium, nickel, mercury and lead (among several others).
The Commission has, it is stated, developed criteria for identifying articles containing CMR substances, in relation to which it is felt appropriate to add new restrictions under Annex XVII using the simplified procedure available to the Commission under REACH. Ordinarily, the standard restriction procedure requires the preparation of a detailed “Annex XV dossier” by the European Chemicals Agency (ECHA) or a Member State, followed by public consultations which result in opinions from two ECHA committees and a final decision by the European Commission. On the other hand, under the simplified procedure, the European Commission is able to propose and adopt restrictions independently, without the need for a dossier, consultation or ECHA opinion.
With this in mind, Hong Kong traders may recall that in October 2015 the Commission announced its intention to use the simplified restriction procedure to target specific categories of consumer articles in order to restrict CMR substances in those articles, whether these exist as impurities from the production process, or as a result of their intentional addition to give articles specific properties. Within this framework, clothing, other textiles and footwear have been identified as a priority case, given the particular vulnerability of consumers to prolonged or repeated short-term exposure to CMR substances potentially present in those articles.
In this context, the Commission submitted a proposal on 26 April 2018 to impose prohibitions against certain substances known to cause cancer and reproductive health problems (CMR chemicals). This proposal – the adoption into law of which is the subject of this update – amends Annex XVII of the REACH Regulation by way of Entry 72 and a new Appendix 12, providing greater protection against 33 CMR chemicals used in clothing, textiles and footwear. The restricted chemicals include, for example, certain heavy metals (i.e., compounds of Cadmium, Chromium VI, Arsenic and Lead), formaldehyde, quinolone, chlorinated aromatic hydrocarbons and a number of phthalates.
Specifically, the amendment provides that the added substances shall not be placed on the EU market, after 1 November 2020, in:
a. Clothing or related accessories;
b. Textiles other than clothing which, under normal or reasonably foreseeable conditions of use, come into contact with human skin to an extent similar to clothing;
if the clothing, related accessory, textile or footwear is for use by consumers and the substance is present in a concentration – measured in homogeneous material – equal to or greater than that specified for that substance in the new Appendix 12. Examples of products covered include bedlinen, upholstery, blankets, coats, children’s clothing, sportswear, gloves, bags, footwear, reusable nappies and head-bands. Note, however, that a specific derogation applies to the placing on the market of formaldehyde in jackets, coats or upholstery. There, the relevant concentration shall be 300mg/kg between 1 November 2020 and 1 November 2023, after which the Appendix 12 threshold shall apply.
However, Hong Kong traders should note that this restriction does not apply to:
a. Clothing, related accessories or footwear (or parts thereof) that are made exclusively of natural leather, fur or hide;
b. Non-textile fasteners and decorative attachments;
c. Second-hand clothing, related accessories, textiles other than clothing or footwear;
d. Wall-to-wall carpets and textile floor coverings for indoor use, rugs and runners,
e. Clothing, related accessories or footwear within the scope of two existing EU Regulations, namely, Regulation 2016/425 and Regulation 2017/745. These concern, respectively, ‘personal protective equipment’ – i.e., equipment designed and manufactured to be worn or held by a person for protection against one or more risks to that person’s health or safety, and medical devices,
f. and ‘disposable textiles’ – i.e., textiles designed for a single use, or for use during a limited time and not intended for subsequent use for the same or a similar purpose.
The new Regulation (destined to be incorporated into the REACH framework) will come into force on 1 November 2018. Following this date, operators will have two years, i.e., until 1 November 2020, to take appropriate measures to comply with the restrictions. The restrictions will be applicable to products placed on the market after 1 November 2020.