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Toxic Flame Retardant Decabde to be Restricted Under Future EU Rules

The European Commission has published a draft regulation restricting the use of the flame retardant DecaBDE in the EU. The draft was notified by the Commission to the World Trade Organization (WTO) on 4 May 2016, under the terms of the WTO’s Technical Barriers to Trade Agreement. The notification is made to other WTO members, so as to ensure that any potential trade barriers are addressed and avoided. Members can then assess the impact of the measure on their exports and spot any provisions that may breach the TBT Agreement.

The draft regulation will have an impact on Hong Kong exporters’ sales to the EU of, among others, plastic and textile articles. It is intended that, pursuant to the future regulation, DecaBDE will be included in Annex XVII of the REACH Regulation. The proposal imposes restrictions on the substance’s manufacturing uses and sale in the EU.

Specifically, the proposed regulation restricts the use of DecaBDE in manufacturing and the placing of goods on the market that contain it. Thus, it will apply to the substance on its own, or as a constituent of other substances in mixtures, or in articles in a concentration equal to or greater than 0.1% by weight.

The restrictions would enter into effect eighteen months after the future regulation enters into force. Adoption of the regulation will only occur after the draft law’s procedural steps are completed. This will include presenting it to the REACH Committee in June or July and Member State representatives having to vote on it. The Committee for Socio-Economic Analysis believes that the eighteen-month transition period is sufficient to allow manufacturers to take the necessary compliance measures laid out in the future law.

DecaBDE, also known as decabromodiphenyl ether or bis(pentabromophenyl) ether, is deemed to be a toxic flame retardant. Its use is found in many different sectors and especially in plastic and textile articles, but also in adhesives, sealants, coatings and inks.

The toxicity of DecaBDE has been determined based on the toxicity of its breakdown products. Exposure to DecaBDE in its lower brominated transformation products may, it is believed, result in neurotoxicity in mammals, including humans. Concerns include the substance’s widespread distribution and potential to cause irreversible long-term harm to the environment, even after emissions have ceased.

The European Chemical Agency’s (ECHA’s) Member State Committee first identified it in November 2012 “as a persistent, bioaccumulative and toxic substance (‘PBT’) and a very persistent and very bioaccumulative (‘vPvB’) substance”, the language now repeated in this draft regulation. Since 19 December 2012, the substance has been included in the Candidate List of Substances of Very High Concern (‘SVHC’) for possible inclusion in Annex XIV of REACH. In 2013, Norway proposed the addition of DecaBDE as a controlled substance to the Stockholm Convention on Persistent Organic Pollutants (POPs), to be taken up by parties to the treaty at COP8 in 2017.

Among other limited sectors, the proposed restriction does not apply to electrical and electronic equipment within the scope of the RoHS Directive, as the placing in the market of such equipment containing polybrominated diphenyl ethers (‘PBDE’) in a concentration above 0.1 % by weight is already regulated by the RoHS Directive.

In more detail, exemptions are proposed for the production and placing on the market of aircraft; for the production and placing on the market of spare parts for aircraft, motor vehicles within the scope of Directive 2007/46/EC, agricultural and forestry vehicles within the scope of Regulation 167/2013 and machinery within the scope of Directive 2006/42/EC; and articles placed on the market for the first time before the date of application of the future regulation.

Various groups such as IPEN and EEB have criticised these exemptions, calling for greater restrictions on use and labelling. Green group EEB has cited several safer alternatives to DecaBDE in manufacturing.

Taking into account the exemptions, the Commission’s proposed restriction is expected to reduce emissions of DecaBDE in the medium to long term, with – it is argued – no significant costs to producers and downstream users.

ECHA’s Risk Assessment Committee and Socio-Economic Analysis Committee have adopted opinions favoring these restrictions.

The regulation would enter into force on the twentieth day following its publication in the EU’s Official Journal. WTO members may submit any comments on the draft regulation by 3 July this year.

Hong Kong companies who feel they may be affected can access the full text of the proposed regulation and the full text of the REACH Regulation via the links below:

Proposed Regulation
Proposed Regulation’s Annex
REACH and its Annexes
Further background information is available on the relevant ECHA webpage.

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