Published on 24 Apr 2023

There are several different chemicals legislations around the world. In the EU, for example, there are more than 40 chemical-related regulations, with REACH and CLP (Classification, Labelling and Packaging) being two of the most important ones.

Even if the EU perhaps has the most ambitious chemicals regulation in the world, it is still not enough to protect human health and the environment from the most harmful chemicals. New tools are needed to push in the right direction, not least if the EU is to deliver on the 2030 agenda for a toxic-free environment. One such tool is the Chemical Strategy for sustainability, which was launched by the EU Commission in October 2020 as a part of the EU Green Deal. It outlines the future of chemicals regulation within the EU and details how officials, agencies and authorities should approach the topic of harmful chemicals.

Regulation drives innovation

Regulation and, in particular, anticipation of regulation drives substitution and steers innovation in the right direction. ChemSec’s view is that the positives of a strict chemicals legislation, where hazardous chemicals are used to a minimum, far outweigh the negatives. 

This is not only true in terms of human health and the environment. Surprising to some, even the business world benefits from strict legislation. Many European companies are already working towards sustainability, spending a lot of resources to phase out the most harmful chemicals in their products while putting pressure on suppliers and chemical industry to find or develop safer alternatives. 

But this issue will not be fixed solely through market mechanisms. It is costly to develop alternatives and to change. For this reason, efficient regulation is desperately needed. 

Ambitious chemicals regulations are also needed to secure future investments in EU industry.

Institutional investors pay more and more attention to chemicals and see the risk of investing in companies with high profits from substances of concern. Regulation plays a key role here to drive these investments and create incentives to substitute substances of concern. 

ChemSec steers chemicals regulations to protect people and planet

ChemSec is an accredited stakeholder within a number of policy institutions, committees and initiatives. In all of these forums, we use our knowledge to influence and improve the way chemicals legislations are implemented in practice. We want them to be as protective as possible and to give incentives for companies to phase out the most harmful chemicals. By doing so, market opportunities for safer alternatives will also be created.

We are in close communication with many companies, mainly frontrunners and alternative providers. Through this work, we know that it is perfectly possible for a company to prosper and reduce the use of hazardous chemicals at the same time. 

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REACH is an opportunity

The EU chemicals regulation REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) entered into force in June 2007, replacing around 40 separate directives. It is a progressive framework for regulating and restricting the use of the most hazardous substances. It also gives consumers and retailers the right to know if a hazardous substance is present in a product. But the REACH process is slow and cumbersome. So far, EU member states have agreed to list a limited number of chemicals as Substances of Very High Concern (SVHCs) on the REACH Candidate List.

The REACH framework is a great opportunity to make things better — for human health, our environment and for progressive companies. We just need to speed up the process.

More knowledge about chemicals

REACH is both comprehensive and complex, involving an integrated approach to regulating the production, import and use of chemicals in Europe. It gives us more knowledge about the chemicals used on the European market since it puts new demands on those who produce or import chemicals to present data on the characteristics of the chemicals and their potential risks to health and the environment. When it comes to chemical safety of products produced or used on the EU market, the burden of proof now lies with the chemical producer and importer — not with public authorities.

REACH requires that producers submit a base set of data for all chemicals produced above 1 tonne per year. This includes carrying out tests to determine if the substance is hazardous. The information is then used to decide whether further measures are necessary. If the required data for a chemical is not presented, the substance will not be allowed in the EU, in line with the “no data, no market principle”.

Substituting with safer alternatives

A key aim of REACH is to encourage the substitution of hazardous chemicals with safer alternatives. The existence of the REACH Candidate List and the authorisation process sends a strong message to businesses that they should review the chemicals used in their products and start replacing hazardous substances with safer alternatives. As a result, the legislation helps to promote innovation, safer processes and the use of alternative techniques. If substitution is not possible for economic or technical reasons, then substances will only be allowed when the socio-economic advantage outweigh the risks.

What a REACH revision should include:

REACH is in desperate need of a revision. As it is now, the regulation does not manage to effectively phase out the most harmful chemicals. Nor does it give sufficient support for chemical substitution and non-toxic circular economy.

This is what ChemSec would like to see from a revised REACH regulation:

✅ Better protection from the most harmful chemicals. This should be done by implementing the Generic Risk Approach (GRA) and the hazard-based approach for the most harmful chemicals

✅ Incentives for industry to move away from the most harmful substances

✅ More chemical transparency

✅ More efficient process. This should be done by regulating groups of chemicals and using the precautionary principle to a greater extent

✅ Incentives for industry to comply with regulation and give market opportunities to progressive companies

Hazard vs. Risk

Is it better to assess the use of hazardous chemicals based on their hazardous properties or the risk that they will actually do any harm? It’s a question that spurs a lot of debate. But is there really a contradiction between the two, and is either of these approaches “the most scientific”?

The term hazard refers to the intrinsic properties of a chemical, its potential to do harm. The risk is the combination of hazard and exposure (risk = hazard x exposure). The risk is what you want to eliminate, by changing either or both of the components hazard and exposure. In purely mathematical terms: if one of them is zero, the risk is also zero.

Risk assessment follows on hazard identification

Since the two approaches are in fact interlinked and risk assessments consist of two parts – the hazard as well as the exposure assessment – it is a common misconception that one or the other approach is more “scientific”.

What the debate is really about is which information we should use as a basis for regulating and managing chemicals, and here the opinions diverge. Is knowledge of the hazardous properties of a substance enough to restrict it, or should we first assess the exposure to see if there is a risk that can be limited by managing the exposure?

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Essential use

The essential use concept is a cornerstone of the Chemicals Strategy for Sustainability, and a key to improving the efficiency of chemicals regulation.

Instead of asking whether a harmful substance can be used safely, it asks whether the use of the harmful substance is essential. To be “essential”, the use needs to be either critical for the functioning of society or necessary for health or safety, with no alternatives available for the use in question.
At ChemSec, we think it’s useful – in order to capture the concept – to pose the question: When is it justified to use the most harmful substances?

Although seemingly straightforward, the discussions over the last year on the Essential Use concept have proven to be anything but. There are so many layers to the concept, and definitely some panic among industry representatives who see it as a threat to their business. And rightfully so; if we are to truly do something about the current situation, where the production and use of harmful chemicals overstep the planetary boundaries, it will have to cost.

Polluter pays

An important part of a chemicals policy aiming at the elimination of hazardous substances is the “polluter pays” principle. The bottom line of this approach is that the company or persons who cause environmental damage should pay for the consequences. This creates an incentive to substitute hazardous substances and to use the safest chemicals possible.

This principle may seem natural and most people believe this is practice everywhere. But when it comes to damage to the environment, the practice is almost always the opposite. The polluters get away with it and society takes the beating. The reason this principle has not been applied concerning chemicals is that legislation has focused on trying to connect a certain substance in a certain place to a certain company or person. This is almost impossible since chemicals are so widely spread throughout the environment, society and our bodies.

Even when the source has been identified, the polluters are considered un-liable since the authorities had permitted the production and release. So we all pay the costs for the ubiquitous presence of toxic chemicals in our surroundings. Aside from the effects on human health and the environment, the economic consequences of these releases are astronomical.

This practice is contradictory to practice in many other areas. Smokers have sued tobacco companies and in some cases forced them to pay for certain health damages even though it is permitted to sell tobacco. Similarly, pharmaceutical companies are liable for the damages caused by their medicines — which have also been approved by authorities.

A chemicals policy aiming to eliminate hazardous substances needs to use the polluter pays principle as an incentive to develop and use the least hazardous substances available. Producers of chemicals should be made liable for the damages they cause. Lately, more and more lawsuits are being filed against PFAS producers for the environmental and health damages they have caused over the years, which is a step in the right direction towards the polluter pays principle.

A non-toxic circular economy

ChemSec sees great potential for circular economy and chemicals regulations to reinforce each other and boost recycling in a sustainable way.

It is in the interest of all advocates of circular economy that the quality of secondary materials is maintained. If not, reusing and recycling will not be attractive options. But in order to achieve a truly sustainable and safe circular economy, we must accept that not all materials can be reused or recycled since they may contain unwanted substances that should not re-enter the market.

Producers and downstream users need to be able to trust that the material they use is clean enough to keep customers safe and their brand reputations unharmed. This calls for traceability and making sure that hazardous substances are not diluted into materials of higher quality. The success of circular economy is therefore dependent on that virgin and recycled materials are free from hazardous substances.

Key points for a circular economy

✅ For a clean and successful circular economy, hazardous substances must be phased out in both virgin and recycled material.

✅ Producers and downstream users must be able to detect the content of reused and recycled material to ensure that it is free from unwanted chemicals. If not, they are not able to use it.

✅ Pollution by dilution will diminish the value of recycled material. This is why contamination of cleaner material should not be accepted.

✅ Reused and recycled material will be used in long-lasting new products that will still be in use when stricter chemicals regulations are in place. Extra caution should therefore be taken to prevent the inclusion of hazardous substances in the circular economy.

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