Simon Tilling Darren Abrahams October 17 2022 EU enforcement of chemicals regulation: delivering zero tolerance of non-compliance? Steptoe & Johnson LLP | Environment & Climate Change - European Union Simon Tilling, Darren Abrahams Environment & Climate Change IntroductionKey takeawaysCommentIntroductionThe enforcement of chemicals regulation is under increased scrutiny in the European Union: the Chemicals Strategy for Sustainability 2020 demands a "zero-tolerance approach" for non-compliance for "[a]ll chemicals, materials and products produced in the EU or placed on the European market".At the recent Chemical Watch Enforcement Summit in Brussels, EU regulators, policy-makers, environmental non-governmental organisations and industry representatives discussed enforcement trends for chemicals regulations across the European Union.Key takeawaysKey takeaways from the summit include the following:The European Commission acknowledges that "the proper enforcement is the cornerstone of credible and effective chemical legislation" and is taking firm action to improve EU enforcement, including:seeking the power to revoke registration, evaluation, authorisation and restriction of chemicals (REACH) registration numbers from registrants with non-compliant dossiers;considering an EU audit capacity to evaluate member state enforcement capabilities;establishing new automated and intelligent systems for customs, with obligations on importers to certify REACH compliance; andexploring better access to justice, encompassing enhanced rights to complain and collective redress.Online sales direct to EU consumers remains a real concern, with a recent targeted pan-EU enforcement project (REACH-EN-FORCE 8) finding non-compliance rates for restricted substances, failure to meet duties for biocidal products and failure to comply with advertising rules under the EU CLP Regulation(1) all exceeding 70% for the sample products tested. The familiar frustration over locating the responsible economic operator for online sales was voiced numerous times by the regulators.The role of appeal bodies in clarifying the rules and upholding legal principles such as legal certainty and proportionality was acknowledged to be an essential part of the effective enforcement of chemicals law.There was also an acceptance that chemicals regulations are complex, and while there was a need to crack down on deliberate free riders whose non-compliance unfairly distorts the level playing field, a proportionate response was needed for businesses that were struggling with the complexity of the regimes. Striking the balance continues to be a challenge.Finally, there was explicit acknowledgement that European chemicals regulation was already the most stringent in the world, with the EU's Chemical Strategy for Sustainability aiming to take it even further. Concerns were raised by both regulators and industry over the practice of restricting substances before analytical test methods are commercially available, and of restricting large numbers of substances such that it becomes unfeasible for compliance programmes to test for the full suite. The view from one speaker that "laboratories will catch up" once restrictions are in place generated much debate, but recent regulatory action suggests that such approaches will remain prevalent.CommentAlthough many of these themes will be familiar to industry, it is noteworthy that the issues are being discussed and addressed across the European Union. The overarching message was that the authorities are serious about an increase in intelligent, targeted enforcement to address non-compliance. Whether such action lives up to the European Union's "zero-tolerance" rhetoric remains to be seen. Companies will want to ensure they can demonstrate to authorities that their product compliance and stewardship programmes reflect very best practices, to manage their potential liabilities.For further information on this topic please contact Simon Tilling or Darren Abrahams at Steptoe by telephone (+44 20 7367 8000) or email ([email protected] or [email protected]). The Steptoe website can be accessed at www.steptoe.comEndnotes(1) Regulation (EC) No. 1272/2008 on the classification, labelling and packaging of substances and mixtures.