1 April 2016
Restriction Imposed over Cadmium in Paints
On 8 March 2016, a restriction of cadmium in paints placed on the EU market entered into effect. The restriction is laid out in Commission Regulation 2016/217, which amends Entry 23 of Annex XVII to the REACH Regulation with regard to the substance of cadmium in paints.
Annex XVII of the REACH Regulation, the ‘REACH Restricted Substances List’, contains a description of restricted or banned substances that pose an unacceptable risk to human health or the environment, their conditions of restriction and the relevant industry sector affected. Restrictions can be imposed on the manufacturing, placing on the market or on the use of certain substances. New or amended restrictions can be proposed by a Member State or by ECHA on request of the European Commission.
In November 2012, the European Commission requested ECHA to prepare an Annex XV dossier with a view to extending the existing restrictions to the placing on the market of such paints containing cadmium over a certain concentration. ECHA's Annex XV restriction report was finalized on 25 October 2013.
As some Hong Kong traders are likely to know, the use of cadmium in paints is already regulated through the current version of paragraph 2 of Entry 23 of Annex XVII, with a derogation for zinc-based paints. This reflects the undisputed and unacceptable risk that cadmium entails. The existing restriction, however, does not apply to the placing on the market of paints containing cadmium. The current wording of paragraph 2 of Entry 23 is as follow:
Cadmium (CAS No 7440-43-9, EC No 231-152-8) and its compounds shall not be used in paints  .
For paints with a zinc content exceeding 10% by weight of the paint, the concentration of cadmium (expressed as Cd metal) shall not be equal to or greater than 0.1% by weight.
Painted articles shall not be placed on the market if the concentration of cadmium (expressed as Cd metal) is equal to or greater than 0.1% by weight of the paint on the painted article.
In its report, ECHA proposed to insert a concentration limit of 0.01% for cadmium in paints, consistent with the limits provided elsewhere in Entry 23. ECHA did not propose the current derogation for zinc-based paint or the restriction on painted articles to be revised, and it did not consider a separate limit for copper-based anti-fouling paint to be necessary.
In addition to the prohibition of cadmium in paints, the current Entry 23 of Annex XVII also contains concentration limits on products such as plastic materials, brazing fillers and metal parts used in jewellery and accessories.
Based on relevant investigations and data submitted by the industry representatives, ECHA concluded that there is no intentional use in the EU of cadmium in the paints covered by paragraph 2 of Entry 23 to Annex XVII, and that there is no awareness of paints currently placed on the EU market which contain cadmium with an intentional use. As held by ECHA, this substance only appears as an impurity in anti-fouling paints. Moreover, concentrations of cadmium in paints in the EU, including copper-based anti-fouling paints, are currently (and also expected to be in the future) well below the proposed concentration limit of 0.01%.
Nevertheless, ECHA found the extension of the scope of paragraph 2 of Entry 23 to be necessary in order to cover the placing on the market of paints which contain cadmium as an impurity, and the placing on the market of imported paints containing cadmium. In practice, this means that the focus is on anti-fouling paints for ships and other marine equipment, which can contain cadmium as an impurity.
As stated by ECHA, neither the extension of the scope nor the proposed concentration limit of 0.01% are estimated to have any economic impact on the European industry or impact on human health or the environment from cadmium releases. The main objective of the amendment of Entry 23 of Annex XVII is to improve the implementation and enforceability of the restriction, as it is easier for enforcement authorities to monitor and control the placing on the market than the use of a certain product. The amendment should thus bring along benefits in terms of reduced costs for compliance and – for the authorities – enforcement costs.
On 9 September 2014, the Agency's Committee for Risk Assessment (RAC) adopted, by consensus, an opinion concluding that such modification of the existing entry would facilitate enforcement and confirming that an additional assessment of the risks presented by cadmium in paints was not necessary. On 25 November 2014, the Agency's Committee for Socio-Economic Analysis (SEAC) adopted, also by consensus, an opinion indicating that the proposed amendment of the existing restriction was proportionate as it would not impose additional compliance costs on manufacturers, importers or consumers, but would improve the enforceability of the restriction.
Regulation 2016/217 therefore replaces paragraph 2 in column 2 of Entry 23 of Annex XVII to the REACH Regulation by the following, for cadmium:
Shall not be used or placed on the market in paints with codes   in a concentration (expressed as Cd metal) equal to or greater than 0,01 % by weight.
For paints with codes   with a zinc content exceeding 10 % by weight of the paint, the concentration of cadmium (expressed as Cd metal) shall not be equal to or greater than 0,1 % by weight.
Painted articles shall not be placed on the market if the concentration of cadmium (expressed as Cd metal) is equal to or greater than 0,1 % by weight of the paint on the painted article.
Hong Kong traders should be aware that the Regulation does not contain a transition period. Article 2 of the Regulation merely states that the Regulation shall enter into force on the twentieth day following that of its publication. Therefore, the amended Entry 23 of Annex XVII of the REACH Regulation will be applicable and binding as of 8 March 2016.