It is no surprise that key information on harmful chemicals originally lies in the hands of industry alone. But just because it starts with industry, does not mean it should be left there, writes Apolline Roger.
Dr. Apolline Roger is chemical project leader for ClientEarth.
This information must be made public, as it can improve chemical safety and promote innovation to find alternative solutions to harmful chemicals.
Before the 2006 adoption of EU chemicals regulation REACH, public authorities had sufficient knowledge on hazard and risk for only 140 out of 30,000 chemicals. REACH forces industry to gather the information it has, generate the information which was dangerously missing, and transfer that information to public authorities. It obliges companies to generate and collect information on chemicals and send it to the European Chemical Agency (ECHA) to prove these chemicals are used safely.
Since its instatement ten years ago, ECHA has become the holder of strategic information. As a result, public authorities know far more about chemicals, their risks and how, where and why they are used. But REACH is not working as well as it should. ECHA estimates that there are about 3,000 chemicals on the market for which there is insufficient knowledge. In addition, it is now time to go the last mile and transfer the information which is now in the hands of public authorities to third parties. This is indispensable as some strategic information has the capacity, if widely shared, to become the lever third parties need to convince companies to accelerate the substitution of harmful chemicals with safer solutions.
ClientEarth’s new report identifies the strategic information held by ECHA which would, if made public, be key to speeding up the phase-out of harmful chemicals. Four categories of information arose, indispensable for different reasons:
– Information on the identity of chemicals, including their hazardous properties, the quantities in which they are manufactured, sold or used in the EU and how to handle them as safely as possible. This information is essential to make chemicals and their risks ‘visible’, to create awareness and support people’s right to choose.
– Information on the function of chemicals – especially harmful chemicals – for example, whether they are used to shine door handles, make plastic flexible or handle nuclear waste. This information is indispensable to discuss whether these substances have societal benefits and if alternative substances or technologies can fulfil the same function.
– Information on which companies comply with their obligations to ensure chemical safety and which do not. This information is key to allow investors, consumers and customers to make informed choices and to allow them, in addition to civil society and citizens, to support public authorities’ efforts to enforce the chemicals regulation.
– Information on the rationale of the EU institutions’ decisions related to ensuring chemical safety is essential to increase trust in ECHA and its accountability.
Sharing strategic information is therefore a huge opportunity; the report shows that it is also an obligation. ECHA is legally obliged to share most of the information it holds with the public under EU law (REACH, the EU Aarhus Regulation and the EU Regulation on Access to Documents) and under international law (the Aarhus Convention). ECHA has also committed to transparency by making it one of its ‘core values’. Ten years in, has ECHA complied with its obligation and lived up to its promise?
ClientEarth’s report answers this question with two conclusions.
First, while ECHA has made much progress in publishing information that was kept secret for a long time, it still falls short of its obligation on some strategic information. For example, companies using substances of very high concern have to let ECHA know their name, location, the quantities they use and the reason why they use it. Originally, ECHA refused to make any of this information public. After ClientEarth reminded ECHA of its legal obligations to share this information, it agreed to partially disclose, but still refuses to systematically publish the exact quantity used – as well as the name and location in some cases.
This information would be instrumental for citizens and workers to map chemical risk and to create incentives for substitution. ECHA also still refuses to disclose the name of companies that have manufactured or imported chemicals in the EU without complying with chemicals regulation, even though doing so would reward virtuous companies.
Second, ECHA has not lived up to the promise of its core value. In fact, most progress has been made after ECHA faced legal action for lagging behind on transparency. ECHA needs to conform to its claimed value and to be more proactive. As shown by the difference between what ECHA originally thought the legal limits of its obligations were and what the agency has now accepted, it must embrace its responsibility towards the public, worry less about industry’s reaction and be bolder in complying with its obligation.
The EU institutions cannot enforce REACH and change industry’s mind-set alone. Transparency is instrumental to get help from third parties – civil society, consumers, citizens, innovators and investors. ECHA has made much progress, but needs to go the extra mile – this is both a legal obligation, and a great opportunity there for the taking.