EEB and EEA call out Commission for regulatory shortcomings
Chemicals
| By RAYAN BHARGAVA, MSC
Two recent reports, one from the European Environmental Bureau (EEB) and the other from the European Environment Agency (EEA), have made assessments of the EU chemical regulations environment. While the EEB report is an indictment of the Commission’s apparent failure to deliver on promises made a year ago in its restrictions roadmap, the EEA report emphasizes the need to regulate pesticides further, characterizing this moment as an opportunity to deliver on a key regulatory commitment.
Regulatory background
- On April 25, 2022, the EU Commission announced its intention to ban thousands of the most harmful chemicals, condensing its plan to restrict these substances into the restrictions roadmap. This roadmap was a commitment of the Chemicals Strategy for Sustainability (CSS), itself a key component of the European Green Deal.
- The roadmap indicates which chemical groups will be prioritized for restriction under REACH ( 1907/2006/EC) until the generic approach to risk management can be integrated through the upcoming REACH revision. In the meantime, the roadmap commits the Commission to regulatory action on lead compounds, per- and polyfluoroalkyl substances (PFAS), and bisphenols among other harmful substance groups. The roadmap foresees bans for 7,000 chemicals by the end of the decade, a drastic acceleration compared to the approximately 2,000 substances restricted in the previous 14 years.
- A year later, the European Environmental Bureau was unimpressed with the progress made. In its report, it christens the Commission plan a “roadmap to nowhere” which, “despite the Commission’s legal obligation, strong political mandate of the Chemicals Strategy for Sustainability and powers to ensure broad and rapid bans,” fails to deliver on its lofty promises. Some of the most prominent shortcomings are summarized and analyzed below.
Roadmap to nowhere
- Although the roadmap promised a group restriction on bisphenols, the overwhelming majority remain unrestricted by REACH. Of the 200 bisphenols marketed in the EU, only five have been shortlisted for restriction, thus far. Because there are 148 bisphenols identified by ECHA as potentially hazardous, the recent German proposal to restrict these five bisphenols is seen as inadequate by the EEB, especially since it exempts the main uses of Bisphenol A (BPA). This is a far cry from the Commission commitment to restrict all bisphenols as a group.
- The EEB sees this failure to regulate most substances within a chemical group as a wider trend. It notes that of the 14 ongoing restriction processes under REACH, 12 cover only some of the substances within a group rather than the entire group as a whole. Some of these restriction proposals are further narrowed by only addressing certain uses of a substance. For example, there are ongoing restriction processes for lead solely in ammunition or in polyvinyl chloride (PVC) rather than a universal ban on the substance in European products. The report sees the proposal for a universal ban on PFAS, which restricts all substances that meet a broad technical definition of the substance group, as a notable exception to this trend and an impressive regulatory standard to which other actions should aspire.
- The report takes great issue with the speed of regulation thus far. It criticizes the regularity of delays which routinely exceed legal deadlines. This happened with the restriction for lead in ammunition where ECHA’s committees took two years to formulate their opinions, double the legally allotted time. Similar delays have occurred with the proposed restriction of perfluorohexanoic acid (PFHxA). ECHA again breached its assessment deadline by a year, failing to release opinions until December 2021 when the proposal was submitted by Germany in December 2019. Since then, EEB emphasizes, the regulatory process has stagnated without explanation, with the Commission yet to interact with ECHA committee opinions in any public way. It may be that the Commission is waiting for progress to be made on the proposed ban of PFAS in firefighting foams, which has potential for significant overlap.
- This overlap in EU regulatory processes concerning PFAS is another criticism levied by the EEB report. The extent of overlap between three pieces of legislation concerning PFHxA, PFAS in firefighting foams, and all PFAS as a group is large enough to necessitate a venn diagram. The report argues that the limited resources available to the Commission are being squandered by pursuing such overlapping endeavors, reducing efficiency and leading to the present culture of delays.
- An example that the EEB report presents of the roadmap failing to live up to its promises is the Commission’s abandonment of a French proposal to restrict severely hazardous substances in single-use baby diapers. After delays exceeding the legal limit, the Commission pulled the restriction, citing uncertain consumer risk. Not only did this fly in the face of ECHA committee opinions on the restriction proposal, but also CSS commitments to protect vulnerable population groups such as children.
Plant protection promise
- With the EEB emphasizing the broken promises of the restrictions roadmap, the European Environment Agency (EEA) last week released a report highlighting an area where it feels the Commission should keep its regulatory commitments: plant protection products (PPP). The EEA report applauds the ambition of recent Commission proposals to alleviate pesticide reliance, most prominently the Regulation for the Sustainable Use of PPPs (SUR), and pushes back against criticism they have received. The report analyzes “how pesticides impact human health and ecosystems in Europe” to underscore the need for comprehensive PPP regulation.
- Dario Piselli, author of the EEA report, has weighed in against a specific piece of criticism levied against SUR by the energy configuration of the Council of the European Union. The Council feels that SUR’s unprecedented halving of pesticide use by 2030 would damage a European food security already tested by the war in Ukraine, demanding that the impact assessment be rewritten with this novel threat to food security in mind. Piselli writes this critique off, telling the Guardian that “there’s limited justification to use the war as a reason for postponing action.” His opinion mirrors that of a Commission working document released earlier this year, contending that a reduction of agricultural pesticide use would actually bolster biodiversity and pollinator populations, benefitting food production in the long term. (For an in-depth analysis of this working document, please read AgencyIQ’s January 17, 2023 article here.)
- Piselli and his report characterizes any potential Commission concession to pressure urging the scaling back of SUR as yet another broken regulatory promise. In the opinion of the EEA, this would represent a missed opportunity to safeguard public and environmental health and has the potential to damage European food security in the long run.
Next steps
- At only a year old, the restrictions roadmap still has time to address the EEB’s criticisms on the basis of regulatory speed and consistency with initial promises. With the upcoming revision of REACH delayed until at least the fourth quarter of this year, it seems the roadmap will have even more time to prove its worth until the generic approach to risk management can be codified in REACH as its replacement.
- The Commission has indicated that it will not complete the SUR impact assessment rewrite that the Council wants. It will, however, be providing “additional input” on SUR in spring 2023. Whether this additional input will dial back SUR remains to be seen. The Commission may be sticking to its guns, as the EEA report has encouraged it to do.
To contact the author of this analysis, please email Rayan Bhargava.
To contact the editor of this analysis, please email Scott Stephens.