Upcoming 14 August deadline for hazardous chemicals in the EU

The 14 August 2008 deadline for companies and other interested parties to make comments on the draft "candidate list" of hazardous chemicals (so-called "Substances of Very High Concern" (SVHC)) is fast approaching. Businesses manufacturing in or importing into the EU substances or products containing substances on the candidate list will be subject to increased burdens. Businesses are thus encouraged to use this opportunity to influence the content of the list.

The 16 substances on the list are: anthracene; 4,4'-diaminodiphenylmethane; dibutyl phthalate; cyclododecane; cobalt dichloride; diarsenic pentaoxide; diarsenic trioxide; sodium dichromate; musk xylene; bis (2-ethyl(hexyl)phthalate) (DEHP); hexabromocyclododecane (HBCDD); alkanes, C10-13, chloro (Short Chain Chlorinated Paraffins); bis(tributyltin)oxide; lead hydrogen arsenate; triethyl arsenate; and benzyl butyl phthalate (BBP).

After the consultation process closes on 14 August, a committee of EU Member State experts will review and vote upon the dossiers on which comments have been received – these dossiers will cover not only the 16 substances on the draft list but also proposals to place other substances on the list. The European Chemicals Agency ("ECHA") then aims to publish a final candidate list by the end of October.

Business concerned will feel an immediate impact of a substance being on the list:

• Companies producing or importing articles containing the SVHCs in the candidate list above a certain concentration threshold will be required to notify ECHA.
• Consumers will have the right to ask about the presence in products of any chemical on the SVHC candidate list, with a 45-day deadline for a reply.

• • This is likely to create a "black list" effect as it forms a target for groups (e.g. NGOs or certain Member States) who are against the use of chemicals on the list; there is a risk that these groups may use the list to put pressure on companies to cease using these substances.
  • In fact, it may be difficult for companies making consumer products (e.g. paints, perfumes and cleaning products) to justify the presence of a SVHC in their products, and they may find themselves under consumer pressure to switch suppliers to those that do not have raw materials containing "candidate list" substances. This could cause significant business disruptions.

In the second stage of the process, around late-2009, substances on the candidate list will be placed in the priority list for authorisation. Once a substance is included in this list, manufacturers and importers would be prohibited from marketing and using the substance unless they can demonstrate that there is a clear and compelling reason to allow its manufacture.