Out of REACH?

Redacted documents suggest Commission's chemicals backsliding

A redacted European Commission impact assessment has revealed a worrying dilution of ambition on the reform of REACH, the EU's key chemicals regulation. Meanwhile the European Ombudsman is probing whether the full impact assessment should have been released.

Backsliding on REACH

2020's Chemicals Strategy for Sustainability promised to move towards "a toxic-free environment" and the proposed revision of the REACH regulation SidenoteREACH – the EU’s flagship chemicals regulation from 2007 – is the registration, evaluation, authorisation and restriction of chemicals. It aims to improve the protection of human health and the environment through the better and earlier identification of the intrinsic properties of chemical substances. https://ec.europa.eu/environment/chemicals/reach/reach_en.htm was key to delivering this. Yet a coalition of industry and centre-right politicians has succeeded in delaying the publication of the much-needed reform. This means that the plan to "ban the most harmful chemicals in consumer products, allowing their use only where essential” is also delayed. But now it seems that this ambition is also being diluted.

A redacted European Commission impact assessment (IA) Sidenote For more information on impact assessments, the role they play in EU decision-making, and why they are often seen as controversial, check out: https://corporateeurope.org/en/better-regulation-corporate-friendly-deregulation-disguise on the potential consequences of the REACH revision has revealed some worrying backsliding on this ambition, according to the European Environmental Bureau (EEB) and CHEM Trust

The focus now seems to be only where there is a high degree of public exposure to harmful chemicals in consumer products. The IA considers a range of scenarios which would leave 99 per cent, 90 per cent, or 50 per cent of consumer products containing the most harmful chemicals untouched by the new rules. Whichever of these scenarios is chosen for the final REACH revision proposal would represent a "drastic scale back", according to the NGOs.

This backsliding appears part of a pattern from the von der Leyen Commission, considering the fanfare with which the European Green Deal was launched and then the reality of its progress in tackling our dependency on fossil fuels or reforming agriculture by cutting pesticide use. It must also be seen in the context of the firepower and influence of the Big Toxics lobby and its efforts to ensure that the burden of toxic chemicals sit with society rather than those who produced them. This is alongside the role played by the political right in the European Parliament and beyond in diluting and / or outright opposing new green rules.

Vicky Cann of Corporate Europe Observatory said: "The Commission is at risk of losing the big picture on toxics regulation. Every day people are being exposed and it's very urgent to get hazardous chemicals and products off the market. We need the REACH revision, up to now substantially delayed, to be published immediately and for it to take a far more robust approach to tackling these toxic substances."

The retreat from an ambitious proposal on the REACH revision is especially shocking considering the results of the European Human Biomonitoring Initiative (HBM4EU), a five year effort by 116 government agencies, labs and universities to screen for internal exposure levels of 18 hazardous chemicals and chemical groups. It revealed “alarmingly high” human exposure, especially of children, with significant parts of the European population exposed to multiple substances above levels where serious health impacts cannot be ruled out.

EEB Head of Chemicals Policy Tatiana Santos said: “The EU’s failure to control harmful chemicals is written in the contaminated blood and urine of all Europeans. Yet, the Commission is preparing to allow the most harmful chemicals to continue being used in at least half of products where they are currently used, despite its assessment that health-related savings will vastly outweigh costs to industry. Every day of delay brings more suffering, sickness, and even early death. The EU’s regulatory retreat could be the nail in the coffin of the Green Deal, fuelling cynicism and undermining trust in the European Project unless the Commission makes good on its promise to detox products. Ahead of the EU elections, it’s high time to wake up and put people before a few short-term lobby interests.”

CHEM Trust Chief EU Policy Advocate, Stefan Scheuer said: “Systematic regulatory avoidance by chemical companies puts people and the planet in danger, as they move from selling one harmful chemical to another. Exactly 1,000 days ago the European Commission pledged to fix this and tighten the EU rules on chemicals. President von der Leyen needs to live up to her commitments and get stronger rules published without delay.”

Ombudsman probe

The REACH IA was released to Corporate Europe Observatory following an Access to Documents request. But frustratingly the IA was heavily redacted, as were the accompanying annexes, and the Regulatory Scrutiny Board's (RSB) opinion on it (which was almost fully redacted, as indicated below). The RSB plays a controversial role in EU decision-making: it assesses all IAs for legislative proposals, before the proposals are finalised by the Commission, and has the power to reject those that it considers incompatible with the EU's Better Regulation agenda.

RSB opinion

Corporate Europe Observatory tabled an appeal to receive the full documents but the Commission has refused to release anything further in this case. Something similar has happened in a Corporate Europe Observatory request to receive the IA on the upcoming Mercury regulation. In this second case no documents, even in redacted form, have been provided.

We have taken these cases to the European Ombudsman's office which has confirmed that it will "inspect the documents that you requested."

These are important matters. The European Ombudsman is already conducting several investigations into the RSB. Meanwhile, in 2018 the EU Court of Justice said in a case brought by NGO Client Earth that documents drawn up in the context of an IA procedure for a legislative proposal should be made directly accessible to the public, before the legislative proposal is published, and that access should not be denied on request. But these two cases indicate that this is not happening in practice.

Vicky Cann of Corporate Europe Observatory said: "The Commission should be publishing all IAs and all RSB opinions on them, in real time. That's essential for public participation and to help secure public interest policy-making. More widely the RSB and the Better Regulation agenda need a major rethink and should be replaced with structures that prioritise sustainability principles."

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