15 April 2016
Industry Lobby Groups Create Backlash against European Commission’s Proposed Clothing Chemicals Ban
The European Commission has come under pressure from various industry lobby groups to refrain from going forward with its planned fast-track procedure to ban nearly 300 apparently toxic substances in clothing items.
It was reported on 24 March 2016 that industry concerns arose against the backdrop of a European Commission public consultation launched on 22 October 2015. The aim of the consultation has been to put into place a future restriction of 291 chemical substances believed to be hazardous, in clothing and other textile articles.
The Commission planned to focus on carcinogenic, mutagenic and toxic-for-reproduction (CMR) substances in textiles, and named almost 300 substances that may be banned under a fast-track procedure (under Article 68(2) of the REACH Regulation), in mixtures and articles used by consumers.
Hong Kong traders familiar with the severity of the REACH Regulation, and its Annex XVII in particular, may know that the EU imposes strict restrictions on hazardous chemicals in several commonly used consumer goods, including toys, clothing, footwear, leather products and plastics. The substances restricted thus far include phthalates, azodyes, cadmium, nickel, lead, and mercury, among dozens of other substances.
The standard restriction procedure used by the EU to put such restrictions in place normally requires the preparation of a detailed Annex XV dossier by the European Chemicals Agency (ECHA) or a Member State, then public consultations, opinions from two ECHA committees, and a decision by the European Commission. However, there is a simplified procedure available to the European Commission, namely Article 68(2) of the REACH Regulation, under which the Commission may adopt restrictions in the case of CMR substances without the application of the standard procedure.
A coalition of industry groups, including the Foreign Trade Association (FTA), the retailers association known as EuroCommerce, and the American Chamber of Commerce, expressed their concerns that using Article 68(2) would lead to the European Commission ignoring the usual evidence-based restriction process under the REACH Regulation. Furthermore, they argued that banning such a large number of substances at once might set a dangerous precedent for poor regulation.
Euratex, the textiles and apparels industry association, considered that if Article 68(2) were to be used, thresholds for substances should also be set, after consultations with industry experts, as part of a potential ad-hoc advisory committee formed of industry representatives.
Environmental and consumer groups, on the other hand, support the Commission’s plans and would even go a step further. Consumer associations such as ANEC and BEUC are said to be demanding the introduction of specific legislation on textiles, so as to address all substances of very high concern (SVHCs). These include endocrine disruptors, as well as persistent and bioaccumulative chemicals.
Greenpeace has additionally asked for a restriction on CMR substances which are unintentionally added to textiles. This well-known NGO has demanded that the values for restricted substances should be set at the lowest level possible, with a “clear phase-out objective and time frame” to allow companies to find substitutes for the restricted substances and innovate.
Non-profit organisation ChemSec asked for the restriction to be clarified so as to cover toys, footwear, and any textile articles sold to companies which were also still available for consumers to purchase. It has called for the list of substances to be expanded to include all heavy metals, expressing its wish for similar restrictions covering all consumer-relevant articles to be introduced by the Commission as soon as possible.
ANEC and BEUC urged the Commission to decide which substances should be restricted, by excluding only those chemicals which have already been proven to be of no concern. The Commission declared that only substances for which evidence was received through the public consultation would be banned. However, the consumer groups pointed out that such an approach would not be in line with the precautionary approach and the philosophy of the REACH Regulation which requires manufacturers, rather than the Commission, to bring evidence for the safe use of their products.
In response, Euratex rightly pointed out that requiring proof of the absence of chemicals in textiles would create an excessive workload for both manufacturers and regulators. Hong Kong producers exporting textile products to the EU would likely very much agree. In demonstrating such burden, the group referred to the European Court of Justice case-law, according to which REACH requirements on SVHCs apply to the examination and coverage of individual components of articles, rather than to the whole article itself.
The Commission will now have to consider the input provided by the industry lobby groups in deciding whether or not to use the fast-track procedure for its proposed clothing chemicals ban.