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French Assembly Adopts “DETOX” Proposal Aiming to Regulate More Harmful Substances than EU’s REACH

A legislative proposal seeking to regulate chemicals alongside the EU’s notorious REACH Regulation, is currently awaiting examination by the French Senate. On 14 January 2016, the French National Assembly examined the legislative proposal for the first time. the future law is being referred to as “DETOX”. Both aforementioned state bodies have to approve the law before it can enter into force in France.

The objective of DETOX is to encourage companies operating in France to substitute hazardous chemicals for safer alternatives, provided they exist at an economically reasonable cost.

This legislative proposal seeks to remedy “the increase of chronic diseases as recognized by the World Health Organisation by acting at the source of the pollution caused by toxic substances”. While the rapporteur of the proposal acknowledges the major breakthrough that the EU’s REACH Regulation represents, he nevertheless highlights its deficiencies, suggesting that only 30,000 chemical substances have been targeted on over a million listed, that the regulation is based on a management rather than on a substitution mechanism, and that small doses, or the so-called cocktail effect (i.e. the effect of individual chemicals when they are combined) are not accounted for.

The rapporteur has further noted that “outside the 31 substances subject to authorization [as listed in Annex XIV of REACH], nothing compels the industry to substitute CMR substances (i.e., carcinogenic, mutagenic and reprotoxic substances) even though an alternative might exist on the market. This is despite the fact that there are over 830 substances of high concern that are not regulated by any instrument”.

As a result, the legislative proposal aims at establishing a complementary framework to REACH while encouraging innovation in the chemicals industry. Specifically, the proposal would mandate companies to report and declare substances, mixtures or articles that are placed on the market, which are subject to the CLP (i.e., classification, labelling and packaging of substances and mixtures) Regulation, the Cosmetic Products Regulation or the Directive concerning Medical Devices.

The declaration would concern substances listed by the Ministries of Environment, of Health and of Labour on the basis of proposals by the French Agency for Food, Environmental and Occupational Health and Safety (ANSES). “Substances of very high concern” under Article 59(10) of the REACH Regulation would likely be included in the list of substances to report. Companies employing less than ten people would be exempt from the declaration requirements.

Companies subject to the draft law will have the option to either report and declare the substances concerned themselves, or go through a competent external auditor.

The legislative proposal nonetheless has its opponents. For example, the French National Union of Chemical Industries claimed that the proposal is unnecessary because of the existing EU legislation, and counter-productive because of the underlying human and financial burdens on French chemical companies, most of which consist of SMEs.
The legislative proposal must now be examined by the Senate (although no date has been set for this). According to the French legislative procedure, a legislative proposal may only become law if it has been approved by both the National Assembly and the Senate – a process which is expected to last many months.

The legislative proposal (available only in French) can be accessed via the following link: DETOX proposal.

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