REACH was adopted in 2006 with the objective of protecting consumers' health and the environment by obliging chemical companies to screen and eventually phase out the most harmful substances on the market.
In the EU's firing line are chemicals that cause cancer, birth defects or which accumulate in human bodies and in the environment – so-called substances of very high concern.
But while the law is expected to improve the environment, it is creating headaches for manufacturers who rely on waste as a secondary raw material, another EU environmental policy objective.
"If you recycle up to an end-of-waste status, it means you're getting a product," said Wobbe van der Meulen, environmental policy manager at SITA, a waste management and recycling company based in the Netherlands.
"And if you have a product and you put it on to the EU market, then you have to comply with the REACH regulation," he told EurActiv in an interview.
The problem with using recycled products as raw materials – especially plastics – is that they may contain chemical substances that are no longer authorised in Europe because of REACH.
"In recycled plastics, you may find substances which were on the market 40 years ago but are currently phased out," van der Meulen explained.
"And so there is not much experience with how to comply [with REACH]."
EU acknowledges conflict between REACH and recycling
Bjorn Hansen, head of unit at the European Commission's environment directorate, acknowledged that the REACH regulation could pose problems for recycling.
"When negotiations began on end-of-waste criteria, there was no REACH," Hansen told a conference organised in Brussels by German chemical giant BASF on 6 September.
"And indeed this means that products that get out of waste with the end-of-waste criteria are in competition with virgin material," he said in reply to a question from SITA's van der Meulen about the potential conflict between REACH and recycling.
Hansen indicated that the Commission was working to "ensure that the interface [between REACH and recycling] works well in the future." However, he admitted that the process "will take time"
"It's a very important point that requires careful thought and long-term planning," Hansen said. "It's part of the resource-efficiency roadmap and the chemicals aspect of it, so it's important."
REACH: Thwarting resource-efficiency?
By making the connection with the EU's resource-efficiency agenda, Hansen is touching a raw nerve.
The European Commission's Roadmap to a Resource Efficient Europe, adopted in September 2011, suggested decoupling the EU's economic growth from raw materials consumption. Supporting low-carbon growth, green innovation and recycling were all mentioned as key objectives.
But the EU's own REACH regulation could make those harder to attain.
Justin Pugsley from JJP Associates, a London-based PR firm, says the 2nd and 3rd phases of REACH will impact many minor metals and rare earths, which are traded in very small quantities but are critical to the very same high-tech eco-industries the EU wants to promote.
"The problem is that REACH registration will be so expensive, it may become pointless keeping manufacturing based on these substances in Europe as no other jurisdictions are considering anything quite so draconian for these materials," Pugsley said.
"It would be a shame for the EU to score home goals in this way and give an advantage to competitors in the US and Asia."
Veronique Steukers of the Nickel Institute warned that REACH would come into direct conflict with other EU environmental policy objectives if it ended up restraining the use of metals that are needed in green technologies such as batteries for electric vehicles or solar panels.
"On chemicals management there are potential conflicts – substances which can be useful like metals are put on the [REACH] list without understanding that they are key to sustainability solutions," Steukers said.
Secondary raw materials priced out of the market
For a waste and recycling company like SITA, complying with REACH may simply prove too expensive to be worthwhile.
End-of-waste products may be exempted from REACH obligations provided they have the same chemical composition as products which have already been authorised by the European Chemicals Agency (ECHA) in Helsinki.
Concretely, this means companies like SITA would need to take out every single batch of secondary raw materials extracted from consumer waste and analyse them to check whether they contain dangerous chemical substances.
The health and environmental motives for doing so are evident. But this process inflates the cost of recycled raw materials and may end up pricing them out of the market.
"You have to know the origin and composition of the incoming waste and sometimes make an analysis on your post-consumer recycled material," van der Meulen explained. "In this regard, REACH compliance is more constraining for recycled than for primary substances, and this is a constraint for the secondary materials market."
At the end of the day, it might make more sense economically to keep waste in landfills instead of recycling or re-using it like the European Commission would like to see.
"If it becomes too complex to comply with REACH criteria for secondary raw materials, then they will remain under a waste status," van de Meulen said.
"And that's why industry and the European Commission have to think about a practical solution."