EUROPEAN COMMISSION RELEASES DRAFT CHEMICALS LEGISLATION

The European Commission released its long-awaited proposal for the EU's new chemical legislation on 7 May for an eight-week public consultation process. Many experts have described the proposal as the most important piece of environmental legislation for a decade because of its enormous scope. European industry groups have expressed serious concerns about the legislation's impact on the competitiveness of the European chemical industry while US businesses and government officials have strongly criticised the proposal for its expected impact on international trade. For their part, environmental groups have accused the Commission of deliberately delaying the process, while noting that the proposal failed to endorse key components of the originally proposed strategy.

Termed REACH (Registration, Evaluation, Authorisation and Restrictions of Chemicals), the legislation, which is based on a White Paper adopted by the Commission in June 2001, would replace 40 different pieces of current legislation. Among the most fundamental changes are provisions that would shift the burden of proof for the safety of chemicals from public authorities to companies that produce, import and use chemicals. The legislation would be administered by a new European Chemicals Agency. Direct and indirect costs for industry and society could amount to ca EUR 15-33 billion, while the occupational health benefits are estimated to reach EUR 18-54 billion over the next 30 years.

Registration and approval procedures would vary depending on the amount of chemicals manufactured or imported, and the level of risk. While about 80 percent of all chemicals would only need to be registered, authorisation would be required for substances of "very high concern," such as carcinogens, mutagens and reproductive toxicants, subject to a risk assessment. To obtain authorisation for a specific use, the applicant would have to show that the risk from the use was adequately controlled or that socio-economic benefits outweighed the risks.

Industry and US administration raise competitiveness and trade concerns

While supporting the European Commission's efforts to develop a new chemicals policy, European industry groups expressed serious concerns over the impact of the proposed regulations on the industry's competitiveness. The European Chemical Industry Council (CEFIC) criticised the proposal as too one-sided in concentrating on environmental and health protection. "There is more at stake than just the environment," CEFIC stressed. "The issue is sustainability, and thus specifically the jobs and prosperity of people in Europe". Strong criticism was also voiced by the US industry, which regards the proposal as excessive, bureaucratic and unnecessary.

The US administration also attacked the initiative as costly, burdensome and lacking a scientific basis, thereby echoing similar criticisms levelled at the EU's biotech policy. "This is a big game; it will dwarf the GMO [genetically modified organism] dispute," said William Lash, Assistant Secretary of Commerce for Market Access and Compliance. Both industry and government sources have alleged that the proposed legislation could unnecessarily restrict trade and be in violation of WTO rules. The US Secretary of State Colin Powell in a note sent to US embassies in Europe warned that the new system "could present obstacles to trade and innovation, possibly distorting global markets for thousands of products".

Civil society groups frustrated with delays and details

Environmental groups, including the European Environmental Bureau, Friends of the Earth, Greenpeace and WWF, expressed their frustration with the Commission's decision to extend the consultation period from five to eight weeks, which meant that the proposal could not be brought before the European Parliament before the 2004 elections, and thus would be delayed by at least a year. They also highlighted the Commission's failure to endorse some key components of the regulation as set out in the White Paper, including an obligation on industry to stop using hazardous chemicals where alternatives were available, and the principle of public right to know.

In addition, the groups noted that the proposal failed to provide adequate protection from chemicals in imported products, as it only required importers to register chemical substances "if during normal use and disposal they are released in quantities of over 1 tonne [per article type] and may adversely affect human health or the environment". Such a requirement, they argued, would be difficult to verify and enforce, and would effectively place the burden of proof on the authorities rather than the importers. Despite these shortcomings, they recognised the potential for REACH to "set a new global standard for corporate environmental responsibility," according to Daryl Ditz of WWF-US.

Civil society sources noted that while the language and logic of precaution was weaker in the proposal than it had been put forward in the White Paper, REACH had the potential to provide a concrete mechanism for precaution. This was reflected in the "no data, no market" approach to all chemicals in the draft text. However, the proposal failed to adequately apply precaution to chemicals of very high concern by not incorporating a strong substitution test to assess whether dangerous substances could be substituted by less dangerous ones where suitable alternatives are available.

ICTSD reporting; "Europe Plan on Chemicals Seen as Threat to U.S. Exports," DOW JONES, 8 May 2003; "Chemical industry says new EU chemicals policy is unworkable," EDIE, 9 May 2003; "Delay and indecision as Prodi Commission fails to protect us from hazardous chemicals," EEB, FOI, GREENPEACE & WWF, 7 May 2003; "Press Statement," CEFIC, 6 May 2003; "WWF sees global benefits in proposed EU chemical reforms," ENN, 7 May 2003; "Manufacturers face EU crackdown on risky chemicals," INDEPENDENT, 8 May 2003.