Chemicals ‘fitness check’ should improve EU legislation, not water it down

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

REACH chemicals protective suit. [Shutterstock]

The scope of the European Commission’s Fitness Check on chemicals is limited to a comparison of the “hazard versus risk” approaches in chemicals legislation. This is misguided, writes Dolores Romano, who argues a hazard-based approach can help protect people and the environment, while supporting innovation.

Dolores Romano is a senior policy officer for chemicals and nanotechnology at the European Environmental Bureau (EEB). 

After attempting to attack existing laws protecting Europe’s flora and fauna, and questioning pending laws on the circular economy and clean air, the European Commission is now suggesting that its approach to risk management protecting citizens and their environment from hazardous chemicals should also be opened up for debate.

Fair enough, you may say, all legislation should, from time to time, be reviewed to check if it is fit for purpose. However, in this case, the consultation covers over 45 pieces of law, yet only looks at one aspect of it, namely risk management, an issue where the EU has frequently come in for heavy criticism from the chemical industry and, in the context of TTIP, the US government, for being overly cautious.

The background paper published last month by the Commission on the Fitness Check on EU chemicals legislation (excluding REACH) states that its aim is to assess whether the current legislative framework for chemicals is fit for purpose and delivers as intended. So far, so good. Its further claim of aiming to ascertain if these laws still meet the primary aims of offering European citizens and their environment a high level of protection, while allowing the EU internal chemicals market to function well, thereby stimulating innovation and competitiveness, is also uncontroversial.

However, the scope of the Fitness Check is limited to a comparison of the “hazard versus risk” approaches in chemicals legislation. This point, as many may remember, was the focus of many complicated debates during the negotiations on REACH and other chemicals-related legislation. And it is crucial to understand and get right if Europeans and nature really are to benefit from a high level of protection from hazardous chemicals.

EU chemicals legislation is currently a mix between hazard and risk-based approaches. The hazard approach is that taken, for example, by the Toy Safety Directive. This states that substances that are classified as carcinogenic, mutagenic or toxic for reproduction (CMR) must not be used in toys. Likewise, laws protecting workers insist that employers must reduce the use of carcinogens and mutagens and replace them, where technically possible, with less harmful substances.

Such a high level of protection is, however, impossible to achieve through a purely risk-based approach. Risk assessments are notoriously slow processes and a systematic lack of exposure data frequently leads to high levels of uncertainties. This means that the establishment of acceptable exposure levels are ultimately political, rather than scientific, decisions, leaving people and the environment exposed to toxic chemicals for much longer than would be possible under a hazard-based approach.

This not only has terrible consequences for people’s health, but also means massive societal costs in terms of healthcare and disability allowances to those no-longer able to work.

Indeed, while parts of REACH employ a hazard-based approach, the restriction and authorisation processes aimed at phasing out toxic chemicals are risk-based. The former relies on member states providing a risk assessment to demonstrate that the specific use of a substance poses an EU-wide risk, while applicants for authorisation must provide an assessment showing that the risk is controlled. The fact risk assessments are such a slow and costly process for member states is one important reason why since 2007 only 18 substances have been restricted via this approach.

The hazard-based approach is clearly the best way to ensure a high level of protection, in particular for vulnerable groups such as young children and babies in the womb, as it means an immediate reduction in exposure to these chemicals. This is notably the case for non-threshold substances, such as endocrine disrupting chemicals, which science shows have the potential to damage health at any level of exposure.

This is not just the conclusion of NGOs, such as the EEB, but also the central conclusion of the 2013 Late Lessons from Early Warnings report by the European Environment Agency, the most extensive analysis to date on this topic. It demonstrates how risk-based approaches make us over-confident in our ability to anticipate harm and lowers our ability to respond sufficiently quickly, and how innovation can be maximised while minimising hazards to people and their environments if the report’s lessons are embraced.

A hazard-based approach is also the fairest way forward for industry as companies have a clear signal that they need to phase out the most toxic chemicals with alternative substances. This creates a level playing field for all firms and pushes them, in line with the Commission’s jobs and growth agenda, to invest in innovation rather than on lobbying to be allowed to keep manufacturing obsolete substances.

The consultation the Commission is running, and the workshop it will hold on the issue in Brussels on 19 April, is therefore a crucial opportunity for all those who want the EU to continue and improve its hazard-based approach to chemical safety to speak out.

Indeed, rather than seeking to water down legislation by re-opening a debate that could lead to a return to more cumbersome procedures, the Fitness Check should help identify gaps and issues to improve Europe’s chemicals legislation. As Catherine Mann, chief economist for the Organization for Economic Co-operation and Development (OECD) said recently: “Governments should stop working on the assumption that tighter regulations will hurt their export share and focus on the edge they can get from innovation”.

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