Do your bicycle's handlebar grips contain hazardous chemicals? Now you have the right to know, thanks to a landmark judgment in the EU Court. Photo: widjaja wreksoatmodjo via Flickr (CC BY-NC-SA).
EU Court overrules regulators, protects people from toxic chemicals
Tess Crean / ClientEarth
17th September 2015
The EU Court has made a landmark judgement we should all be glad of, writes Tess Crean, firming up our right to know when products contain chemicals known to be seriously damaging to health. Now we must make sure that reluctant regulators step up to the mark.
The law was put in place to protect people and the environment. The Court of was the opinion that, if industry's interpretation were applied, this objective would be missed. This is a sensible decision that strengths our defences against toxic chemicals.
Just imagine that your handlebar grips contain toxic chemicals used to make them soft, squidgy and shock absorbing. Have you got the right to know they are there?
Since last week, the answer is: yes you have! The EU's Court of Justice has just ruled in favour of improved information for the public on the use of toxic chemicals in products. And this is the result.
This was a landmark judgment, overruling previous policies of the European Commission and the European Chemicals Agency (ECHA) which made it hard for people to know the toxins they were being exposed to.
Manmade chemicals are all around us, and are used to produce many everyday items like bottles, clothes and computers, and yes, even bicycles. But while these chemicals can pose significant risks for our health and the environment, it is sometimes difficult to find out how and when they are used.
Realising the dangers this could cause, EU lawmakers introduced the Registration, Evaluation, Authorisation and restriction of Chemicals Regulation (REACH) in 2007.
REACH is itself groundbreaking legislation, operating on the basis of 'no data, no market'. This means no chemical should enter the European market unless extensive data on the risks it poses have been provided to ECHA, and appropriate risk management measures applied.
Particular attention is paid to 'substances of very high concern' (SVHCs). These are chemicals that are exceptionally hazardous to people and the environment, like carcinogens, mutagens and chemicals that are persistent, bioaccumulative and toxic.
Chemicals which EU countries identify as SVHCs are put on a list, called the 'candidate list'. These 'candidates' are tested, to see if the dangers of using them outweigh the benefits. If so, they may only be used in certain limited circumstances, where specific authorisation has been given by the regulator. This can result in an effective ban of the substance.
At the moment, there are 163 SVHCs on the candidate list, but just 31 on the 'authorisation' list. As this difference in numbers shows, it takes a long time to get an SVHC moved from the candidate to the authorisation list. In the meantime, these chemicals are allowed to circulate. This makes it crucial that the controls on SVHCs are properly applied from the outset, to protect people and the environment from substances that may, later, be deemed too dangerous to use.
In order to prevent irreparable damage to health, REACH rules that SVHCs must undergo more stringent checks and controls than other chemicals - including disclosure when they are present.
Lost in translation: exactly what is an 'article'?
That's the theory of it - and very good it is too. But the strict theoretical controls REACH places on the use of chemicals in Europe have not always translated into practice. The case before the Court of Justice concerned one of these failures of translation.
Under REACH, where an 'article' contains more than 0.1% by weight of an SVHC, there is an obligation to notify the regulator, and to provide certain information on the SVHC to recipients and consumers of the article. This includes members of the public who are considering whether or not to buy it.
But what exactly is an 'article'? The law defines it as something having a special shape, surface or design which determines its function. So a plastic handlebar grip is an 'article', meaning that if an SVHC (for example a listed plasticiser chemical) made up more than 0.1% of its weight, ECHA and the public must be told.
The problem arises when several articles are combined to produce another, bigger article. Handlebar grips, for example, are 'articles' that, in combination with many others, make up a bicycle, another 'article'.
The question before the Court of Justice was whether, in such cases, the 0.1% SVHC threshold that triggers the extra controls applies to each handlebar grip, and every other component that makes up part of the bicycle, or only to the bicycle as a whole.
Applying the 0.1% threshold to the bicycle as a whole would not remove the dangerous chemical from the handlebar grips. But if the dangerous stuff was there at under 0.1% of the whole bicycle, as it would be, the public would no longer have to be told about it - even though their skin was exposed to it every time they rode the bicycle.
And this is the situation that has pertained up until now thanks to regulators' weak interpretation of the law.
Regulators' assumption - the law only applies to the entire product
In 2011, both the Commission (4th February) and ECHA (1st April) issued guidance stating that, in order for the controls to be activated, the SVHC had to make up 0.1% of the entire product. In other words, it applied only to the bicycle as a whole.
This interpretation diluted the potential of REACH to protect people against dangerous chemicals. By applying the requirement to finished products rather than individual components, the number of 'articles' to which the more stringent controls applied was drastically reduced.
As a result the amount of dangerous substances in circulation was not decreased - just the public's knowledge about them. But thankfully, the opinion of the Commission and ECHA was not shared by all EU countries. France in particular broke from the regulators' concensus.
Later in 2011, on 8th June, French government issued a notice saying it would apply the REACH requirements to each component article - thus the handlebar grips, not just the bicycle.
Industry in France was unhappy with this position. Two industry groups, the Fédération des Enterprises du Commerce et de la Distribution (FCD, representing retailers and wholesalers) and the Fédération des Magasins de Bricolage et de l'Aménagement de la Maison (FMB, representing builders merchants and DIY shops) brought the legal challenge to the government's interpretation.
A positive judgment
In a strong judgment that represents a victory for people and the environment, the EU Court sided with the French government, ruling that the information requirements apply where the SVHC makes up 0.1% of the component articles of a product.
In reaching its judgment, the Court rejected arguments from the Commission, and from industry, that indicated their preference for protecting profits before people.
Firstly, the Court dismissed the Commission's argument that it would be difficult for importers to obtain information about the composition of articles from suppliers outside the EU.
As the Advocate General rightly pointed out, if suppliers from outside the EU want to produce large quantities of their articles for the European market, they should have no problem providing the relevant information.
Secondly, the Court rejected arguments that this interpretation of REACH would significantly raise the cost of placing products on the European market. Industry representatives argued that, by investigating the components, rather than just the whole product, the cost of examining a shoe would rise from €2,400 to €22,800.
This is plainly untrue, as the amount of the SVHC in the components would need to be known in the first place to assess the entire shoe. This line of reasoning reveals either the absurdity of the arguments put forward by industry in an attempt to avoid their obligations - or the fact that they have not been complying with them at all.
REACH was put in place to protect people and the environment. The Court of was the opinion that, if industry's interpretation were applied, this objective would be missed. This is a sensible decision by the Court, and represents a move towards strengthening our defences against toxic chemicals.
Turning the screws
Predictably, the judgment was immediately met by protests from the retail and wholesale industry group, EuroCommerce, which called for a moratorium on the rule's application "pending these documents being available before this interpretation is implemented and enforced by member states.
"We also would wish the Commission to look again in the context of better regulation procedures at the relevant provisions of REACH to see whether the burdens arising from the Court's ruling are proportionate."
This reaction is not surprising, given that there is evidence that firms were not even complying with the earlier, more lenient requirements. But in fact the most likely effect is not that we will be handed a toxic substance data sheet every time we buy a bicycle - but that these dangerous SVHC substances will be replaced by other less toxic ones.
The next challenge will be to ensure the Court's judgment is properly applied, and that industry is not allowed to subvert the protections provided by law in favour of profits.
For the moment, however, we have taken a significant step in the right direction - for consumer protection against seriously harmful substances.
Tess Crean is a toxics expert. She joined ClientEarth in 2015 having previously worked at the Court of Justice of the European Union, and at law firms in Ireland, France, and the United Kingdom.
- Judgment of the Court of Justice in Case C-106/14
- Opinion of Advocate General Kokott in Case C-106/14
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