Registration and notification obligations
On March 5 2012 the European Chemicals Agency (ECHA) announced the most commonly found "substances of very high concern" (SVHCs) in goods that are commonly bought by EU consumers. SVHCs are substances deemed to be dangerous and are found on a list – known in Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) parlance as the Candidate List.(1)
Several obligations flow from the use of SVHCs in goods (articles) which are placed on the EU market. The ECHA's announcement demonstrates that of all dangerous substances, four phthalates are the most commonly used and therefore present in goods. The four phthalates, added to the Candidate List due to their toxicity to reproduction, have been named as bis(2-ethylexyl) phthalate (DEHP), benzyl butyl phthalate (BBP), dibutyl phthalate (DBP) and diisobutyl phthalate (DIBP).
These phthalates are commonly found in, among others, batteries and accumulators, fabrics, textiles and apparel, machinery, mechanical appliances and electrical/electronic products, as well as in different types of plastic, rubber and wood products.
DEHP is found, for example, in accessories such as cables, adapters, storage media, picture frames, computer mice, keyboards and headsets, as well as in accessories stitched onto textiles (eg, buttons, reflectors, fasteners and labels). It is also found in wallets, umbrellas and car mats, among a long list of other products. DBP is found in several of the above products, as well as shoes with plastic parts, bags, belts and household goods such as lamps and microwave dishes. DIBP is also found in outdoor seating furniture and wire insulation in electrical products. Finally, BBP is found in, among others, plastic blister packaging, plastic foil, power cords of electrical appliances and PVC packaging material.
The second most common notification is for hexabromocyclododecane (HBCDD), a brominated flame retardant deemed to be persistent, bioaccumulative and toxic. The substance is commonly found in products used in the construction and building sectors, such as plastic panels for the thermal insulation of buildings. Companies have also notified its use in polystyrene foam used for packaging and in the plastic housing of electronic appliances.
Registration and notification obligations
The list of SVHCs published by the ECHA is said to be the first of its kind, and is based on information provided by companies to the ECHA in notification and registration dossiers. EU producers and importers of foreign goods must register any chemical substances contained in their goods if certain conditions are met. They must also notify any SVHCs in their products if certain conditions are met.(2)
Both the phthalates and HBCDD have been added to the European Union's so-called 'Authorisation List' (Annex XIV of the REACH Regulation). They are being phased out from use in the European Union. European companies that wish to continue using them for applications where there are no alternatives must apply for specific authorisations or the substances will eventually be banned: the four phthalates from February 21 2015 and HBCDD from August 21 2015.
The ECHA has highlighted a concern that products containing SVHCs, particularly imports into the European Union, may not be notified as required. It has stated that it is providing the information on SVHCs in order to enhance knowledge of the use and presence of hazardous substances in consumer products. However, the initiative is also intended to remind producers and importers of their legal obligations, under certain conditions, to notify the ECHA when their products contain substances on the Candidate List.
From April to December 2011, the ECHA received only 203 notifications. According to the ECHA, this is a new obligation for producers and importers, which may yet be unaware of their responsibility to notify. Consequently, the information does not provide a full picture of substances of very high concern in products on the EU market. Companies are thus encouraged to check whether they have implemented their legal obligations in this regard.
In December 2011 20 new SVHCs were added to the Candidate List. Therefore, companies should be aware that the deadline to notify the ECHA of the presence in products of any such SVHCs is June 2012.
The ECHA has also taken the opportunity of its March 5 2012 announcement to remind EU consumers that they have the right to know when substances on the Candidate List are present in products that they want to buy. Any consumer has the right to ask the supplier (including retailers) this question, and to receive an answer within 45 days.
For further information on this topic please contact Reshad Forbes at Van Bael & Bellis by telephone (+32 2 647 73 50), fax (+32 2 640 64 99) or email ([email protected]).
(1) The ECHA's table containing data on Candidate List substances (SVHCs) in products can be found at http://echa.europa.eu/web/guest/information-on-chemicals/candidate-list-substances-in-articles-table.
(2) For more information on registration and notification obligations, Article 7 of the REACH Regulation and/or the ECHA Guidance on requirements for substances in products should be examined. Both are available via the ECHA website at http://echa.europa.eu/.