News 2017 / May

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Why should producers of safer chemicals bother with policy when no one listens to them?

The authorisation process hurts European innovation Ι By Anne-Sofie Andersson

ECHA authorisation process

When I studied chemistry I used to rent a small flat in a rather rundown brownstone complex. My neighbour at the time, Anita, was a sweet old lady who people living in the house used to help from time to time.

Usually it was effortless. Help with lifting down the fine dining china from the cupboard, changing bags in the vacuum cleaner, some issue with the remote – those sorts of things.

Anita, however, had a hard time remembering things and would often ask you to do the same things twice. It didn’t matter if you insisted you already took care of the vacuum cleaner, she just wouldn’t listen. I’m guessing it was more down to her enjoying the company for five minutes rather than actually forgetting things.

So why do I bring up this old story?

Well, basically because the European Chemicals Agency (ECHA) and the authorisation process are giving me strong Anita vibes. Time and time again producers of safer alternatives are invited to the process as “third-party voices”, but just like with Anita, no one listens to what they have to say.

“I think most companies consider weighing in on political processes is pretty far from their core business”

And in the same way that helping Anita was strictly speaking not my responsibility – I had chores of my own to take care of – I think most companies consider weighing in on political processes is pretty far from their core business.

They are in the business of selling their products, not writing assessments for authorities in Helsinki and Brussels and spending loads of money and resources to travel to different meetings. Still they do it, but many times in vain it seems.

If you are unfamiliar with the authorisation process it goes a something like this: In the EU, the worst and most toxic chemicals are put on the authorisation list, Annex XIV, and in order for a company to be able to use any of these chemicals they must apply to the European Chemicals Agency for so-called authorisation.

The applicant needs to show that the chemical do not pose any risk or can’t be replaced and that its use is vital for society. Or that’s what it says in the legal text anyway, but it’s usually enough for an applying company to show that someone is buying its products to make a “strong case”.

At this point producers of alternatives are invited to the process, which theoretically is very good as the aim is to make sure the applicant really searched every nook and cranny for an alternative.

In reality though, the arguments of alternative producers are rarely taken into account, even though their submissions basically say: “Yes, it is possible to replace this toxic chemical with our alternative substance”, and that authorisation would affect them negatively.

To be fair, the alternatives often cannot reproduce the exact same results. For example, there might be slight colour variations.

A good example is the lead chromate case from last year. The company that applied for authorisation wants to use lead chromates in paint for road markings, even though many countries in the EU stopped using it decades ago, since there are safer alternatives.

But the alternative yellow has a slightly different lustre compared to the lead chromate yellow and authorisation was given a green light (and now Sweden have sued the Commission over this decision).

People supporting the use of lead chromates sometimes argue it’s a matter of road safety, since it creates a more reflective yellow colour. But this argument falls flat since there is no indication that for example Swedish road safety is compromised because of a softer yellow. In fact, Swedish road safety is among the best in the EU.

Regardless, the difference in colour variations is not that striking anyway, no matter how many times the company applying for authorisation vows it is as night and day.

Within ECHA the reasoning is that it’s not up to them to decide what level of aesthetics is acceptable. ECHA is not in the business of deciding if something looks good or not. That makes perfect sense. I would never ask Anita for fashion advice either. The difference is that Anita never threatened my livelihood or European innovation.

And innovation is what’s really at stake here. I think most stakeholders in the chemical arena understand the environmental and health aspects (although I suspect many people would be a bit shocked if they knew how many cases of cancer among workers are considered “acceptable” in order to produce something ”aesthetically pleasing”).

An even more pressing issue though is that by constantly allowing companies to use the same old toxic chemicals we are simply not progressing towards safer products.

“But there are positive signs. This time around it seems there are major disagreements within the advising committee in ECHA”

You hurt innovation by authorising the use of well-known toxic substances, rather than increasing demand for emerging safer alternatives by forcing substitution. This is the expression “regulation drives innovation” in a nutshell. Or not driving it in this case.

The effects of this kind of policy are very real and set off a chain reaction of events.

A green light to use toxic chemical leads to > less potential business for alternative producers > less investment in scaling up the production of alternatives > keeps prices of alternatives high. I have heard of one alternative producer having trouble getting bank loans for new investments due to an authorisation case.

And unsurprisingly history is repeating itself in the latest, much discussed, authorisation case. The company Gerhardi, representing a coalition of 12 companies, has submitted an application to use the restricted carcinogen chromium trioxide for so-called decorative plating – basically giving plastic parts in cars a chromed look.

Once again it’s a case of aesthetics and once again a coalition of alternative producers have come forward and spent a lot of time weighing in on the process, but ultimately they’ve been ignored – because their alternatives cannot reproduce the exact same aesthetic results.

But there are positive signs. This time around it seems there are major disagreements within the advising committee in ECHA. Four representatives have come together in two different so-called minority positions, which are formal complaints objecting to the committee’s opinion. It is very unusual for committee members to go this far in their criticism.

One minority position targets the Gerhardi application’s lack of market surveys: “…there is nothing [in the application] that properly justifies the applicant’s claims that customers would not accept parts made with alternatives…”

That sentence quite nicely illustrates the problem with how the authorisation process currently works – it’s set up a bit like a trial in which the defendant has put together the case against himself. Would you expect to find many incriminating facts in that material?

What’s worse is that ECHA won’t look anywhere else except in the documents submitted in the process. A simple Google search can reveal a number of different companies that either produce or use alternatives to the chemical in question, but that doesn’t matter if that information is not submitted.

And on the question of aesthetics, there must be decision makers who can see things for what they are: Unnoticeable colour variations in road markings or shiny, chromated car door handles are not “vital for society” if the price is to allow the use of substances of very high concern.

It’s backwards thinking, since widespread use of SVHCs is what REACH aims to eliminate in the first place.

 

Anne-Sofie Andersson

Anne-Sofie Andersson
Executive Director, ChemSec