By Daryl Ditz
December 1, 2010 marks the beginning of a new chapter for REACH, the flagship European Union (EU) law affecting thousands of industrial chemicals … with important implications for the United States and other countries. Beginning today, companies operating in the EU cannot make or import high-volume, or certain high-hazard, chemicals unless they have been “registered,” which requires submitting basic safety data to the European Chemicals Agency (ECHA).
The rationale of registration is summed up by the catchphrase “no data, no market.” In other words, from this point forward it will be illegal to manufacture, import or use such chemicals within the EU, a market which now numbers 500 million consumers, unless companies provide necessary information on health hazards, human exposures and safety. This requirement now applies to chemicals produced or imported above 1,000 metric tons per year, as well as smaller volume chemicals identified as causing cancer, birth defects or reproductive damage.
Why is this necessary? Because without this essential information, chemical makers — along with their customers, regulators, health officials, and countless others — can’t possibly evaluate risks or take sensible actions to protect workers, consumers and communities. It’s shocking but true: until the advent of REACH, thousands of industrial chemicals have been treated as innocent unless proven otherwise.
ECHA reports that 4,300 such substances have been “registered,” including 3,400 already on the market. The agency estimates that these account for about 90 percent of chemical production in Europe, although tens of thousands more are produced in smaller quantities. Similar reporting requirements will apply in June 2013 for chemicals made or imported above 100 tons per year, and to smaller volume chemicals by June 2018.
The information contained in these registration “dossiers” includes essential identifiers, such as the chemical’s name and formula. It also includes data on inherent properties, such as toxicity and persistence in the environment. Companies are obliged to provide guidance on safe uses, and share this with downstream users. Soon, much of this data will be publically available on the official ECHA website. Confidential information will be available to public authorities, potentially including governments outside the EU. (Yes, even U.S. EPA could gain access.)
In truth, we won’t know for certain how valuable this first batch of registration information is until it can be scrutinized, through both public review and an official audit of a small sample of submissions. If the chemical industry has accepted its obligations and been forthcoming, then REACH registration data will be a valuable trove of information, assisting companies, environmental authorities, and many others with a stake in safety. Conversely, if chemical makers have fudged the information or glossed over major data gaps, this will undermine the success of REACH and further erode the already low public opinion of the chemical industry.
How is the REACH data relevant in the United States? Although many of these same chemicals are likely made or imported in the United States, there is no comparable requirement under the toothless Toxic Substances Control Act (TSCA). Here, the law of the land is “no data, no problem.” Many U.S. chemical makers have already submitted their registration information, for the simple reason that they want to retain a share of the EU market. So the information provided to EU authorities could help bolster the paltry U.S. reporting system. However, the business logic has not stopped the American Chemistry Council, the principal lobbyists for U.S. chemical manufacturers, from pulling out all the stops to stymie EPA’s efforts to improve reporting under TSCA.
In addition, U.S. companies that purchase chemicals, or chemical-containing goods, from the EU, will benefit from greater transparency sparked by REACH. This is likely to fuel ongoing efforts to green the supply chain of U.S. manufacturers that buy, use and incorporate chemicals — as well as U.S. retailers. The fact that institutional investors are paying greater attention to the financial risks of haphazard chemical management is likely to increase demand for chemical safety data.
As I’ve argued for years, the advent of REACH is helping to create both a business and political climate for revamping TSCA. Legislative progress in many states is also heightening the supply of, and demand for, credible information on chemicals. This past year, two proposals to reform TSCA were introduced in Congress. Both the Safe Chemicals Act (S. 3209) in the Senate and Toxic Chemicals Safety Act (H.R. 5820) in the House would mandate reporting on chemical hazards, exposures and uses. While the details vary, U.S. chemical companies complying with REACH would have a leg up in the process of gathering and assessing information required by these proposals.
One thing is certain: Information is one of the most mobile of commodities, crossing borders at the speed of light. As REACH matures, and U.S. policy initiatives gain momentum, the exchange of data on chemical safety will provide a knowledge base to protect public health and enable business to capitalize on safer chemicals. Congress should embrace the concept of a reinvigorated, information-rich TSCA, drawing on these complementary efforts, to create a 21st century system that serves both public and private needs.