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New Far-reaching Restrictions on Flame Retardant “decaBDE” to Enter into Force

On 10 February 2017, the Official Journal published Regulation 2017/227 introducing further restrictions on the use of bis(pentabromophenyl) ether, more commonly referred to as decaBDE. This is a widely known and hazardous flame retardant used in a variety of articles, especially textiles and electronic and electrical equipment (EEE) made of plastic. It is also used in adhesives, sealants, coatings and inks.

Given its presence in a wide variety of products, Hong Kong importers of goods into the EU should be alerted to this new law, including the transition period before it will begin applying in all EU Member States, as well as any provided exemptions.

The recently-published Regulation introduces a new Entry in Annex XVII of the REACH Regulation (Regulation 1907/2006) concerning the registration, evaluation, authorisation and restriction of chemicals. Hong Kong suppliers of goods to the EU will likely be familiar with REACH, which controls the use of thousands of chemical substances.

The newly introduced Entry provides that decaBDE shall not be manufactured or placed on the market as a substance on its own after 2 March 2019. In addition, the placing on the market of other substances, mixtures or articles containing decaBDE in a concentration equal to or greater than 0.1% by weight is also prohibited from this date.

The new Entry does, however, lay down a number of exceptions to these general restrictions. For instance, articles already placed on the market before 2 March 2019 are exempted entirely.
In addition, EEE falling within the scope of Directive 2011/65/EU on the restriction of the use of certain hazardous substances (RoHS 2) are also exempt from the new restrictions. This is because RoHS 2 already restricts the placing on the market of EEE containing decaBDE, and other polybrominated diphenyl ethers (PBDE), in a concentration above 0.1% by weight.

The new entry also provides that in order to give the aviation industry sufficient time to adapt, the restrictions will not apply to civil or military aircraft until 2 March 2027.

Moreover, there are exemptions for spare parts made for aircraft produced before 2 March 2027, as well as spare parts made for motor vehicles, agricultural and forestry vehicles, and machinery falling within the scope of Directive 2006/42/EC, produced before 2 March 2019.

Given the number of exemptions to what is considered to be a vital restriction curbing the harmful effects of decaBDE, the Regulation introducing it has faced heavy criticism from environmental campaigners.

The senior policy officer of the European Environmental Bureau (EEB), the largest federation of environmental citizens’ organisations in Europe, described the measure as a “missed opportunity to have drawn a line under this dangerous substance once and for all.”

She said that the long deferral periods foreseen in the Regulation, are “unjustified” and “particularly irresponsible because safer alternatives are already available on the market.” In this respect, she notes that airplane manufacturer Boeing has already accepted that decaBDE could be phased out by as early as next year.

Both EEB and IPEN (which is an international organisation of environmental and public health groups) which focus on safe chemical policies, have also argued that the only reason for the spare parts exemption is to save the relevant industries money.

Environmental campaigners have also criticised the Commission’s decision to adopt a longer deferral period, than the 18 months typically given following a regulation’s publication, before the restrictions enter into effect. In response, the Commission has argued that a longer period is necessary to account for uncertainties that remain over the recycling sector’s ability to ensure the management of waste containing decaBDE.

Nevertheless, environmental groups are quick to emphasise the harmful effects of decaBDE and the need to adopt a hard-line to curb its use as fast as possible. DecaBDE is a known endocrine disruptor and a very persistent and very bioaccumlative substance; meaning that it can cause a build-up of dangerous toxins in the environment and humans.

Regarding the Regulation’s origins, on 19 December 2012 decaBDE was included in the Candidate List of Substances of Very High Concern (SVHCs) for possible inclusion in Annex XIV to REACH on authorisation requirements. Annex XIV bans the substances listed within it from placing on the market or use in the EU, subject to only very limited exceptions. However, further to a proposal from Norway to list decaBDE in Annex A (Elimination) of the Stockholm Convention on Persistent Organic Pollutants (POPs), the Commission began to consider whether making decaBDE subject to Annex XIV requirements was still the most appropriate regulatory measure.

On 28 September 2015, ECHA submitted the opinions of its Risk Assessment Committee (RAC) and its Committee for Socio-Economic Analysis (SEAC) to the Commission. Both ECHA committees recommended that a general restriction on all uses of decaBDE with some specific exceptions would be the best option to reduce emissions of decaBDE as much as possible in the medium- to long-term.

In response, the Commission developed a proposal to include a new entry in Annex XVII which lays down conditions on restrictions on the manufacture, placing on the market and use of certain dangerous substances, mixtures and articles. After passing through the Member State committee, the Commission adopted the Regulation. The Regulation will officially enter into force 20 days following its publication in the Official Journal.

Click on the following link to view Regulation 2017/227.

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