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Official Guidance on ‘Restrictions’ Responds to Questions Concerning Chemicals Banned in Toys, Childcare Articles and Textile Products, Among Others

On 7 June 2017, it was announced that, in collaboration with the European Commission, the European Chemicals Agency (ECHA) has prepared several new “Q&As” as guidance on restrictions listed in Annex XVII of the REACH Regulation.

Restrictions are a tool to protect human health and the environment from unacceptable risks posed by chemicals. A restriction applies to any substance on its own, in a mixture or in an article, including those that do not require registration. Importantly for Hong Kong traders, restrictions apply to both EU-manufactured and imported goods.

The guidance, which is presented in the form of a question-and-answer format, is aimed at assisting industry (including, for example, Hong Kong’s manufacturing industry exporting their goods to the EU). It is also intended as a helping hand to enforcement authorities, who are obliged to implement the respective restriction provisions in all the Member States.

The Q&As point out that a number of Annex XVII entries (Entries 5, 31, 43, 50 , 51 and 52) specifically refer to toys. However, the REACH Regulation does not define “toys”. Toys are defined by Directive 2009/48/EC, the Toy Safety Directive, as “products designed or intended, whether or not exclusively, for use in play by children under 14 years of age”. Annex I to that Directive then contains a more detailed list of products that are not considered as toys (e.g., folk dolls and decorative dolls, or puzzles with more than 500 pieces). Furthermore, articles which are explicitly not to be considered as toys include toy vehicles that have combustion engines, toy steam engines and slings or catapults.

Overall, the definition of toys in the Toy Safety Directive should be used to determine what the REACH Regulation means by “toys” for the purposes of restrictions in its Annex XVII. Concerning toys exempted from the scope of that Directive, these should also normally not be considered as toys for the purpose of the relevant REACH restrictions.

As for “childcare articles”, the term means any product intended to facilitate sleep, relaxation, hygiene, the feeding of children or sucking on the part of children. The same definition appears in Entries 51 and 52 of the REACH Regulation’s Annex XVII, providing an indication of what should be generally considered as a “childcare article” in the context of all Annex XVII provisions.

Another important term affecting restrictions that has often dogged companies concerned by REACH is “placing/placed on the market for the first time”. Article 3(12) of REACH defines “placing on the market” as supplying or making available, whether in return for payment or free of charge, to a third party. Import is deemed to be placing on the market. Placing on the market for the first time limits the scope of the restriction to the first natural or legal person who supplies or makes available substances, mixtures or articles on the market of the EU. The first placing on the market in the EU will either be by the EU manufacturer or the importer of the substance, mixture or article.

Another important question for Hong Kong traders would be “Which restrictions under REACH concern textiles and leather articles?” The Q&As (as updated in June 2017) answer that many entries in the Restriction List (of Annex XVII) cover articles. Such entries are, for instance, Entries 50 - 52, 61 and 63. These may address types of textiles and leather articles, even if these are not explicitly mentioned. However, the following entries in the Restriction List (Annex XVII) are specific to textiles:

  • Entry 4 ((2,3 dibromopropyl) phosphate, CAS No 126-72-7);
  • Entry 7 (Tris(aziridinyl)phosphinoxide, CAS No 545-55-1; EC No 208-892-5) and
  • Entry 8 (Polybromobiphenyls; Polybrominated biphenyls (PBB), CAS No 59536-65-1).

These entries state that the named substances “Shall not be used in textile articles, such as garments, undergarments and linen, intended to come into contact with the skin.”

Equally important, the following entries in the Restriction List (Annex XVII) restrict substances in relation to textiles and/or leather articles:

  • Entry 18, restriction on mercury compounds in the impregnation of heavy-duty industrial textiles and yarn intended for their manufacture;
  • Entry 20 (paragraph 6), restriction on dioctyltin (DOT) compounds in textile articles intended to come into contact with the skin;
  • Entry 23 (paragraph 6), restriction on cadmium and its compounds in textiles and clothing;
  • Entry 43, restriction on azocolourants and azodyes in textile and leather articles which may come into direct and prolonged contact with the human skin or oral cavity (an indicative list is provided);
  • Entry 46 (paragraph 3) restriction on nonylphenol and nonylphenol ethoxylates in textiles and leather processing (with some exceptions);
  • Entry 46a, restriction on nonylphenol ethoxylates in textile articles which can reasonably be expected to be washed in water during their normal lifecycle, and
  • Entry 47 (paragraphs 5-7), restriction on chromium VI compounds in leather articles coming into contact with the skin.

Other significant guidance is set out in the Q&As, which would be of relevance to Hong Kong companies exporting their consumer goods to the EU. For detailed information, please click on the following hyperlink: Q&As on restrictions.

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