The vast majority of the draft REACH Regulation is aimed at tackling substances from the point of manufacture onwards to a limited extent. However, Article 6 of the Regulation is the European Commission's main attempt to try to tackle the issue of products or "articles" containing dangerous substances.
It aims to address the problem of unregistered or restricted chemicals being brought into the EU through imported products. It also aims to catch products containing substances in applications that have not been registered under REACH.
The clause focuses on a tonnage-based approach to the presence of dangerous substances in products and their likelihood of release during use - a system that few can see working in practice.
There is "no silver bullet for this one", an official from one EU Member State concluded.
"It seems to be a sort of dead end where no-one is really coming up with a solution that avoids both dangers: to avoid a system that is disadvantageous for EU companies, and to avoid conflicting with World Trade Organization rules," a legal expert at the European Chemical Industry Council (CEFIC) commented.
The issue is particularly vexing for downstream businesses such as textile users and manufacturers in the EU who, as importers of dyed material, fear being made responsible for registering substances.
According to Adil Elmassi, environmental affairs manager at the European textiles trade body Euratex, the industry does not have the harmonised methods and tools necessary to track the quantities of chemicals used in its products. Neither does it have sufficient knowledge of their properties and impacts. On top of this, he pointed out, there is no way of ensuring that imported products also undergo such checks.
Speaking in a personal capacity, Mr Elmassi said: "It is not enough to simply say in the Regulation that it also applies to imported products....I believe that if we fail to find answers to this problem then we should not impose it on EU producers and we should seek to deal with it in the future....Perhaps we should not have this Article 6 in REACH from this perspective."
Retailers in the UK agree on the impracticability of Article 6. Sustainable development manager for Boots, Stephen Johnson, noted: "The crux is that retailers will find it almost impossible to track and register the uses of substances in articles based on a tonnage limit." He pointed to the recently established Supply Chain Leadership Initiative with the UK Chemical Industries Association as a step towards addressing this (ENDS Report 349, p 37 ).
Clothing retailer Marks & Spencer points to the increasing pressure on high street firms to explain the chemicals used in their products and their impacts. Companies are even now being rated by environmental groups on the basis of their attitudes to the REACH legislation. Retailers need an accepted statutory system which they can point to as evidence of a responsible attitude.
While REACH has been designed to tackle substances, it does not adequately address products, said Mike Barry of M&S. Moreover, it will be another 10-15 years before it is fully functioning, leaving retailers "in the wild west" in terms of their vulnerability to campaigns and consumer boycotts until then.
According to Mr Barry, the solution is a step-wise one. Firstly, the European Chemicals Agency should be made responsible for producing sector-specific guidance on the use of chemicals in different types of articles, taking into account the complexities of global supply chains.
The next step would be to use this guidance to establish internationally accepted technical standards for properties such as minimum acceptable levels of dye fastness, which can then be made legally binding.
Such a process will again inevitably take years to develop. In the meantime, Marks & Spencer suggests there must be greater self-regulation by retailers working together to make pledges on the use of priority chemicals.
Other options coming to the fore also attempt to tackle the issue of substances in products from a downstream user perspective. The Swedish government revealed at a recent meeting of Member State officials that it will shortly table a position paper on the issue of substances in articles.
According to the Swedish chemicals inspectorate Kemi, which is leading work on the paper, it is due to be finalised in time for discussion at the Environment Council in June. Kemi's REACH coordinator, Per Bergman, said that the government is being pushed strongly by downstream user industries to find a means of supplying them with the information they need on substances in their products. Kemi shares their criticism of the tonnage-based approach proposed by the European Commission.
Sweden reached this point in the thought process five years ago when it adopted the ambitious overall policy goal of a "toxics-free environment" in one generation. It realised then that it could only do this with adequate information about substance use and made it a goal to pursue the issue at EU level.
Its initial thinking is based on a labelling concept focusing in the first place on the most hazardous substances under REACH, for instance those that require authorisation. An obligation would be placed upon producers of substances and on each step of the supply chain to indicate the presence of these chemicals in their products. This could be made a condition of authorisation.
But Kemi would like to go beyond this to the creation of an efficient system which enables downstream users to obtain information and so make choices about the many other chemicals in their products. The database of information that the European Chemicals Agency is expected to keep under REACH does not address the problem as the information will be subject to strict confidentiality rules. Moreover, it is not likely to correlate substances to products in a sufficiently practical way.
Sweden is said to have support for the thrust of its approach from other Nordic states and the Netherlands.
NGOs too are pushing for a system that would provide information to downstream users and ultimately consumers about the substances used in articles. One idea is for a requirement to label products to indicate when they contain REACH-registered substances.
In May, four groups - the European Environmental Bureau, Friends of the Earth, Greenpeace and WWF - sent a joint letter to competition ministers in advance of their initial policy discussion on REACH. The letter suggests a simplification of Article 6 so that it applies a one tonne threshold for the quantity of a dangerous substance per producer or importer, regardless of how many types of an article they import. The effect, it concludes, would be to force more producers to inform suppliers only to use REACH-registered chemicals.