US companies fear 'black list' effect of REACH[fr] 

The REACH proposal defines some chemical as being "of very high concern" to human health and the environment, requesting that they be evaluated as a top priority by the future European chemicals agency in Helsinki. 

Substances "of very high concern" are defined as those blamed for causing cancer, genetic mutations or reproductive problems and which tend to build up in the human body and the environment [carcinogenic, mutagenic and reproductive toxic (CMR); persistent, bioaccumulative and toxic (PBT); and very persistent and very bioaccumulative (vPvB)].

However, the European chemicals agency will still be able to authorise these substances in cases where their replacement proves too difficult, too costly or when there are no alternatives. In their first reading on REACH last year, the EU Council of Ministers agreed that the agency would be able to allow the temporary use of these chemicals only under three circumstances:

• their risks for human health or the environment are "adequately controlled" 
• the social and economic benefits of the substance outweigh those risks; or
• analysis has shown "suitable alternative substances do not exist"

In a position paper dated 10 April 2006, the American Chamber of Commerce to the EU (AmCham EU) says it is "strongly opposed" to the elaboration and publication of a so-called "candidate list" of substances of very high concern to be assessed in priority under REACH.

AmCham EU argues the mere publication of the list "will have a de facto black list effect" that is likely to cause massive business disruptions even before the agency assesses whether they can be authorised despite their high toxicity.

It says publication will make it very difficult in practice for companies making consumer products (eg, toys, food packaging and cosmetics but also others such as cars and computers) to justify the presence of 'substances of very high concern' in their products. 

It expects that manufacturers will require suppliers to provide them only with raw materials that do not appear on the list, forcing them to transform complex supply chain arrangements and causing "major business disruptions and unnecessary barriers to trade".

But what AmCham EU fears the most is that the list "will be used by green NGOs and their Governmental supporters to force companies not to use these substances". Such an outcome would constitute an unnecessary obstacle to trade, opening the prospect of a WTO dispute in accordance with article 2.2 on technical barriers to trade (TBT), says AmCham EU.

On the NGO side of the fence, chemical safety campaigner Justin Wilkes at WWF's EU office prefers to turn the argument the other way round. He says making the list public would actually allow manufacturers to be informed early on about substances likely to be banned in the future, giving them more time to adapt to a changing business environment.

"Information is crucial on the market", says Wilkes who believes that "it makes good business sense for downstream users [of chemicals] to be given early warnings" about substances likely to be restricted.

In any case, he warns, if the candidate list is not made freely available, the WWF and Greenpeace will publicise their own.

"It is beyond doubt that there will be a list," Wilkes says. But he admits that the issue of determining whether it should be made public under REACH is still open to consideration in second reading.