Greens and industry stand firm on REACH 

• Thomas Jostmann (TJ) is Executive Director Product Stewardship (REACH) at the European Chemical Industry Council (CEFIC)
• Ninja Reineke (NR) is Senior Programme Officer on Toxics at WWF

After all that has already been discussed and agreed in first reading, what do you expect from REACH at this stage of the procedure (second reading)?

TJ: Workability on the aspects of how to implement authorisation, how to make sure that companies can interact without having big problems, and exchange information. And of course, cost issues are involved in that as well, to make sure that we are focusing our resources on the right substances before we dilute our efforts on those substances which are not really in the focus of the safe handling of substances.

NR: We also want REACH to work - otherwise it will be of benefit to no one. For us, the most important things are to enhance the substitution principle to make sure that REACH delivers on the health and environmental benefits and to make sure that the negative impact of chemicals is reduced - this was one of the original aims of REACH. The other two points are 'duty of care' for all producers producing chemicals and information for consumers which will need to make informed decisions. These are three issues which can all be solved without having an impact on workability.

If it appears that the substitution principle is the biggest remaining challenge for both of you, we know that definitions are getting quite important. And one of them is this concept of "adequate control" which is rather loosely defined. So, under what circumstances do you think a highly toxic substance can be "adequately controlled" without posing a risk to human health or the environment?

TJ: Adequate control means that the substance will be manufactured, used along the value chain and applied in the downstream user area or up to the end consumer without posing any risk to human health or the environment. This can be achieved by either technical or organisational means or by making sure that the substance which might have a hazardous profile will not be released so that there is no exposure at all.

Therefore the construction of the manufacturing plants on the one side and their application in the downstream user area and the final product delivery is quite important to assess that everything is under control and that there is no uncontrolled release.

[To CEFIC] Can you give a practical example? Are you talking about consumer products or are you referring to worker's exposure in industrial plants?

TJ: Take for example plastic additives: you can produce them in close containment in the chemical manufacturing site. Then, you can use that additive in the way plastic articles will be produced, ie a bottle, or a mobile phone cover. Then, the substance will be used in the end consumer market.

[To WWF] Are you convinced by these arguments as an NGO?

NR: We think the concept of 'adequate control' does not apply to the chemicals of very high concern because if it did work, we wouldn't have increased contamination of wildlife and people, we wouldn't find flame retardants in our bodies and in people's blood. And it wouldn't lead to an impact in the Arctic and accumulation in the food chain and so on.

'Adequate control' may work for 90% of the cases but not for those with which we are dealing [under the authorisation procedure of REACH]. And this is why we don't agree with the current Council text, which still allows chemicals, such as carcinogens and other chemicals of very high concern, to stay on the market even though safe alternatives exist. Therefore, we need to replace these chemicals.

Does that mean that the chemical industry has not "adequately controlled" its products in the past? Consumers are worried that toxic chemicals end up in their bodies…

TJ: No, the CDC (the Centre for Disease Control and Prevention in Washington), has claimed several times already that it doesn't pose an immediate risk if a substance is in your body. And the concentration we're talking about is in the magnitude of background detection rather then having a real serious contamination profile which could cause a risk.

[To WWF] Do you think these levels of contamination are safe enough and kept under 'adequate control'?

NR: Well there are two things - there may be no immediate risk, you may not die immediately from those traces in your body but we are looking at serious illnesses such as cancer and infertility which are known to develop over a long time and where chemicals were involved in low amounts. For some chemicals it is the timing and not the amount that matters. So I think it's not really comforting for consumers to know that there is no immediate risk when you find these chemicals in your body. This is why we think the adequate control does not work for these chemicals.

[To WWF] Do you understand the argument that there may be no substitution possibilities directly available for some toxic chemicals?

NR: Yes, we understand that argument and we certainly don't want chemicals which are essential for society to be replaced in the first instance. But this is not what the Parliament says because there will be a procedure at the agency looking at the suitability and at the needs of society.

What is the difference between the Council position and the Parliament position on this?

NR: In the Council text, it says CMRs [Carcinogenic, Mutagenic and Repro-toxic] chemicals would have a threshold [i.e: a safe limit value] and that, if they can be adequately controlled, you do not need to look at safe alternatives. The agency is then forced to grant the authorisation. And we just think this is the wrong way to go about it. Looking at how we can minimise exposure should be the last step and the first step should be to look at the alternatives. And this is what the Parliament does.

TJ: With the Parliament's proposal, you blank out all the substances which do not have a specific threshold value and do not have alternatives but have social economic benefit. These substances have to be banned immediately with the Parliament proposal. There is no substitution plan anymore.

Could you please explain what the 'threshold' is?

NR: It basically means that you can set a safe threshold for a carcinogen, for example, under which there is no assumed effect.

Do you think that there can be 'safe thresholds'?

TJ: Thresholds will be reviewed by the authorities in a periodical way through the comitology procedure. This is the key principle in controlling substances and in industrial process.

NR: So far, safe levels have always only been reviewed by being set at lower levels. As more information comes out, it turns out that previously thought safe levels have not turned out to be safe.

Let's move on to another topic - the 'duty of care' principle. Under this principle, companies could be held liable in case of foreseeable harm done to others, including possibly consumers. What is your view on this?

TJ: I think that the duty of care principle as drafted by Mr. Sacconi [MEP in charge of REACH at the Parliament] is creating lots of different problems in terms of implementation.

I am talking about direct liabilities: you can see the outcome of duty of care principles in the US, where people can make a claim as soon as they are covered by the duty of care principle and can make a claim against the company.

Secondly, if a company is competing in emerging markets, it can not run its business as it will be immediately faced with liability cases when introducing new products, even if it is not proven.

[To WWF] Do you agree with this analysis that the duty of care principle might get out of control?

NR: Is it a problem only with the term 'duty of care' or with the principle of company responsibility? I don't think the principle could get out of control. Regarding the wording, it could be a problem legally in some countries. Perhaps finding a different wording could be a solution here as long as the principle of company responsibility for the safety of their products is kept.

Turning to data confidentiality, you are aware that there may be a trade-off between free-flow of information down the supply chain and the protection of confidential business information. Do you think a right balance has been found on this or that progress can still be made?

TJ: The free flow of information as regards animal testing data is well covered. But I think it is important that there is an option to opt-out on sharing information if it concerns confidential business information. And the information is not just market share or the way companies are targeting particular markets. Let's take an example: if a company is producing a special ingredient which is going into an electronic device and the company producing that is known as being the leader in this particular business. If the company has to disclose this chemical to non-European competitors, they will simply jump on that. Sometimes even the name of the substance in combination with the company is creating a problem.

[To CEFIC] So is this still an issue for you? Would you be satisfied if the Council version went through as it is?

TJ: We wouldn't be satisfied, but if we have to buy the entire package as part of the negotiation process, we will accept the Council version.

[To WWF] What about you?

NR: Well, I was surprised to hear the example of the company name and the substance because under current legislation the company name is always made public whereas under REACH it can be kept confidential. So for us it is already a step back on current legislation. 

I would rather concentrate on which information the consumer actually gets in the end.  We think this will be crucial to allow independent institutions doing research on chemicals to link their findings and to try and find out more about the effects of the chemical. The problem for us is that as a consumer, you will not really get the necessary information and this is why we support the amendments tabled by the parliament in this respect.

[To WWF] You mentioned information to the consumers and information for further research. Are they not to be treated differently?

NR: We are interested in both sides. One of the problems at the moment is that when NGOs work with scientists from universities, they say they found a chemical but they do not really know where it is used, what does it mean and if it is a problem or not. To then follow-up and be able to tell which company is producing it - and so to better link up this information -, this is currently not possible.

The whole REACH process has being going on for about two/three years, have you, NGOs and industry, come closer together in that time? Have you started to listen to one another?

TJ: I think that we have learnt a lot during the REACH debate and I think as well that NGOs do have to play their role. This is quite normal because industry has to deal with consumer concerns. And what we have seen so far is that we, as a chemical industry, have tremendously changed our attitudes towards open dialogue, not just to inform the public about certain aspects but to listen to them and to try and find the best way to address the concerns internally and externally.

NR: We took part in stakeholder conferences and technical meetings where you see and understand the problems that industry has. We saw the complexity of compiling a chemical safety report and when you see how much detail is involved, then you see how much work this means on the company side. REACH is really impacting the core of the whole chemical industry. But of course we would not have this problem now if industry would have provided the necessary safety information 30 years ago.

Do you both think that REACH will increase consumers' confidence in chemicals?

TJ: The normal consumer doesn't know anything about REACH and this is quite a concern as regards the way REACH will be enforced. The idea of having a REACH quality label on consumer products [as proposed by Guido Sacconi MEP] is something we are not happy about because it doesn't say anything about the content or about how the substance has been proven to be safe or not. This is just another PR gag, I would say.

NR: We actually agree with this because a REACH quality mark would only say that 'this product is not illegal.' REACH information should be used for eco-labelling schemes that are already existing in product labels.

Also, to be blunt, after the registration requirements have been scrapped to a significant extent in the first reading, if you don't get an improvement on the substitution principle for the second reading, I don't think there's anything in it for the consumers.

The whole REACH exercise was meant to bring more confidence to consumers concerning chemicals. Now, if after five years the EU sees that it hasn't really brought confidence back, what is needed then? How can you win back confidence?

TJ: I think you are not entirely right. REACH was intended to make sure that the handling and use of chemicals would be made safer. And it is not really a problem in the chemical industry but in the entire supply chain to ensure that substances will be handled in the safest way possible. So the information flow guarantees a safe management of chemicals along the value chain is the most important point in the end. And this is of course a big benefit coming out of REACH - ensuring that not just information flow but checking if the risk management measures are implemented in the downstream area and up to the end consumers also.

At the beginning of REACH, it looked as if though industry was very scared of the whole thing, seeing very few benefits and only costs. But now, it seems that industry has realised that it made sense to have this regulation on the table...

TJ: We have worked towards a more workable system, our concerns of high costs and no delivery on the benefits were related to the first version of REACH. Now, we have discussed a lot in the past few years and I think we are on the way to getting it more workable. And you can tell that through the commitment of industry to make efforts to contribute to a better implementation of the REACH proposal. That is demonstrating we think that we need something workable. And that the old legislation hasn't delivered, that's for sure.

NR: For us it's nearly vice versa: the NGOs were very excited at the beginning to think that this is finally a systematic approach for stopping contamination and to have a more intelligent system in place. Whereas now, we are saying that we are not quite sure if we still want REACH.

[To WWF] So you would not be unhappy if there was no REACH in the end?

NR: This is a theoretical question, because the industry now needs it and wants it and has made all the preparations. Also for Europe, it has become such a high profile dossier that the Commission can not afford not to have REACH. This is not an option on the table. I would say that I am still in doubt and that I will really look very closely at the final text

Does that mean that the situation concerning chemicals has not improved since three or four years ago? Will the system not improve whatever we had at the starting point?

NR: Of course there will be benefits - more awareness on the industry side, more voluntary agreements but looking at the legislation…. I'm not sure.

TJ: Let me phrase it differently: you can have poor legislation but as long as you have a strong commitment to make it happen, you will get the benefits. However, you can have really good legislation and a bad enforcement which will not deliver.

NR: That's true, and that's why at the NGO level we're looking at how we can follow the implementation.