Recent developments in EU chemicals policy: ozone-depleting substances, packaging and labeling of chemicals, and REACH

Companies manufacturing or exporting chemicals or chemical-containing products in or to the European Union ("EU") should be aware of three recent developments in EU law potentially impacting their business operations:

1. On January 22, 2009, the European Parliament's Environmental Committee voted on changes to the EU rules on ozone-depleting substances (ODS). In particular, the Environmental Committee supports making the current European Commission plans more stringent by taking the following action:
   
   
   • moving up the effective date banning hydrochlorofluorocarbons (HCFCs) from 2020 to 2015;
   • instituting a complete ban of Methyl bromide use (in contrast to the Commission proposal to continue allowing its controlled use for certain applications such as quarantine and pre-shipment);
   • restricting normal-propyl bromide (n-PB) (versus simply monitoring as proposed by the Commission); and
   • allowing fewer exemptions from a ban on ODS exports.

   These proposed changes by the European Parliament's Environmental Committee will now be analyzed by the EU Member States and the Commission in order to reach an agreement on the final text of the law during the summer of 2009.

2. On January 20, 2009, the EU's Regulation on the classification, labeling and packaging of chemicals ("CLP") entered into force. This marks the start of a transitional phase in which the 'new' and 'old' rules (contained in the Dangerous Preparations Directive and the Dangerous Substances Directive) will co-exist, as laid out in the tables below:

   Substances

Jan. 20, 2009 - Dec. 1, 2010	Suppliers must classify [i.e. in the safety data sheet] substances according to the old rules, and may continue to label and package them according to the old rules. However they may classify according to the CLP in addition to the old rules, in which case they must label and package according to the CLP.
Dec. 1, 2010 - June 1, 2015	Suppliers must classify substances according to both the old rules and the CLP. They must label and package according to the CLP. Although by derogation, substances classified, labeled and packaged according to the old rules and already placed on the market (i.e. in stock) before Dec. 1, 2010 are not required to be relabeled and repackaged under CLP until Dec. 1, 2012.
June 1, 2015 onwards	Suppliers must classify, label, and package according to the CLP.

Mixtures ("preparations")

Jan. 20, 2009 - June 1, 2015	Suppliers must classify mixtures according to the old rules, and may continue to label and package them according to the old rules. However they may classify according to the CLP in addition to the old rules, in which case they must label and package according to the CLP.
June 1, 2015 onwards	Suppliers must classify, label, and package according to the CLP. Although by derogation, mixtures classified, labeled and packaged according to the old rules and already placed on the market (i.e. in stock) before June 1, 2015 are not required to be relabeled and repackaged under CLP until June 1, 2017.

The CLP Regulation implements the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals ("GHS") into EU law - a system designed to reduce chemical risks arising from variations in hazard labeling of products in different jurisdictions.

The changeover to the CLP rules will not only affect businesses in the EU but also those exporting to the EU who will have to change the labeling and classification of their products within these periods both on labels and safety data sheets in order to be compliant.

1. On January 14, 2009, the European Chemicals Agency ("ECHA") launched a public consultation on the first draft recommendation of substances to be included in the list of substances subject to authorization under REACH (the Regulation on the Evaluation, Authorization, and Restriction of Chemicals). Once chemicals are included on the Annex XIV Authorization List, businesses will no longer be able to produce or use them unless they comply with stringent criteria, including demonstrating that the risks resulting from the use of their substances are adequately controlled, or that the socioeconomic benefits of the use outweigh the risks and there are no suitable alternatives.
   
   Based on its assessment of the available information (which included information on the properties of a substances, its uses, and the volume supplied), ECHA has recommended prioritizing seven substances out of the 15 substances that are on the Candidate List (published 28 October 2008). The prioritized substances are:
   
   
   • 5-tert-butyl-2,4,6-trinitro-m-xylene (musk xylene)
   • Alkanes,C10-13,chloro (short chain chlorinated paraffins; SCCPs)
   • Hexabromocyclododecane (HBCDD) and all major diastereoisomers identified
   • 4,4'-Diamino diphenyl methane (MDA)
   • Bis (2-ethylhexyl) phthalate (DEHP)
   • Benzyl butyl phthalate (BBP) and
   • Dibutyl phthalate (DBP)
     
     
   Interested parties can comment on ECHA's reasoning and justification for prioritizing these seven substances and also on uses which should be exempted from the authorization requirement. Comments have to be submitted on or before April 14, 2009, by using the relevant online forms on the ECHA website.