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The ultimate guide to cheat regulation and sell toxic chemicals in the EU

Chemical Industry

The ultimate guide to cheat regulation and sell toxic chemicals in the EU

Published on 24 Sep 2020

Did you ever wonder how companies can get away with having harmful chemicals on the EU market? Wonder no more.

ChemSec presents to you the ultimate guide to cheat EU chemicals regulation and get away with it. We will show you how to dodge regulation in the first place, and how to delay controls and ensure that your toxic chemical stays on the EU market for a long time once your company has been targeted by the authorities. The steps presented in this guide are all well-tested and proven to work – laggard companies have been following them with great success for years.

Step 1: Don’t reveal your chemical’s true identity

If there’s one thing you should know, it’s that scientific uncertainty stalls the regulatory process. With this in mind, you don’t want anyone to be able to pinpoint your toxic chemical’s composition and identify it. What you want instead is a vague and unclear substance that no one can really put their finger on. So, that’s what you tell them: “Yeah, it’s kind of like this other chemical but at the same time it isn’t, you know, there’s a lot of ‘ifs’ and ‘buts’ to it”.

The European Chemicals Agency (ECHA) will then label it a UVCB substance, which basically means that they don’t know what it is. Alternatively, make sure that your chemical contains contaminants that could – potentially – influence its hazard profile. The important thing is that they can’t know for sure.

Why do you want to do all this? Well, to ensure that regulatory action will be delayed since more information is needed to define and evaluate your chemical properly. Don’t worry, you can always update your registration at a later stage and claim that the substance now is purer, doesn’t have contaminants, or that you now know how to specify its identity.

Step 2: Be smart about the CAS number

Don’t choose a CAS number (chemical identification number) that someone else has already registered and where lots of data is available. That would only increase the risk of ECHA targeting you sooner rather than later. Remember, you want to delay all regulatory action for as long as possible!

Instead, you should use a CAS number that is somewhat descriptive of your chemical but not used by other registrants. If you’re willing to spend 1,000 euros, you could also choose to register a completely new CAS number. This would give you the possibility to tailor it to your every need. How about that for creative freedom?

Step 3: Make a mailbox responsible for your EU dealings

Now it’s time to create a shell company – also called an OR (Only Representative) – in the European Union that is legally responsible for your REACH application and all communication with ECHA and national authorities. Are you afraid that it will look suspicious? No worries. Almost 40% of all registering companies are actually ORs – so you will be in good company!

If you thought they were only meant for companies based outside of the EU, then think again. They can work wonders for EU companies as well. If your manufacturing facilities are based in the EU, you just export your full production to a legal entity outside of the union – let it bounce back and forth a couple of times on paper – and then re-import it through your shell company. Since this will hide your actual EU company, you escape any unwanted spotlight on your dubious chemical dealings. Pretty smart, right?

Legal enforcement under REACH is a national concern, so your shell company’s country of residence is important. Make sure to register it in an EU state with scarce resources and not a whole lot of interest in enforcing the regulation. This will help to further delay any control mechanisms should you appear on the regulatory radar.

Oh, by the way, you don’t need to have an actual office or hire any staff for the shell company – that would be far too expensive. A simple mailbox address where ECHA and local authorities can send snail mail is enough.

Step 4: Register your chemical and start selling it

It’s time to register your substance, but don’t worry about scientific data gaps. The truth is that you don’t need any actual data at all to complete a registration. As long as the information you put in the registration dossier seems to be valid, relevant and credible, you will pass the automated completeness check and will be assigned a registration number – which is basically the only thing you need to access the EU market.

Now, if you spend a bit more time on making the dossier look good – even if it’s filled with nonsense data – it will reduce the risk of being noted by regulators in later steps. But in any case, as long as you pay your fee and the registration dossier is complete from a technical point of view, ECHA can’t deny you a registration number – no matter how little time you invest in it.

Congratulations, you are now legally on the EU market and can sell to all of your EU customers unhindered!

Step 5: Dodge and delay all legal enforcement actions

Unfortunately, your chemical will probably be manually screened and assessed by ECHA more in-depth at some point. This, however, is years away. The truth is that ECHA is still struggling with the registrations from 2010. So, say a quiet “thank you” to your industry peers for submitting creative dossiers all these years.

But when the time comes, you need to be prepared. There are several different ways that the authorities can come at you. To be able to choose the most appropriate way to neutralize their work and delay legal enforcement you need to learn from the best.

One of industry’s favourites is to take advantage of the so-called Risk Management Option Analysis (RMOA). Since it needs lots of detailed information on the chemical’s hazards and uses in order to work, it can really help you delay regulatory action. How? By not giving away any information on the chemical’s use, you leave the authorities not knowing how to handle your substance in the RMOA, creating further costs and delays on their side.

If that doesn’t work, take a look at this arsenal of tips and tricks that have all done wonders for your industry peers as well:

  • State that the information is confidential and stick to that argument no matter what
  • Promise that you will give them the information at a later moment
  • Fail to deliver the information in the end anyway
  • Only accept tests that take a long time to perform and claim that they’re the only reliable ones
  • Ask for an extension of testing deadline due to unforeseen circumstances – anything can happen, make something up!
  • Complain to the EU Ombudsman (there’s always something to complain about)
  • Appeal and claim wrongdoings in ECHA’s processes
  • Only update dossier when the process has already started
  • If all else fails, don’t respond

Step 6: Withdraw your registration and vanish into thin air

If the national authorities finally decide to enforce REACH – in spite of all your efforts to avoid that from happening – you have hopefully already had your chemical on the EU market for many years. You put up a good fight. Now, it’s time to cut your losses and withdraw your registration.

Luckily for you, since there is no longer any registration to enforce and your mailbox company has disappeared into thin air, all enforcement activities from the authorities will fall short. Better luck next time, authorities!

Step 7: Start all over again

Okay, so your chemical is finally locked out from the EU market and you’re wondering what to do now. “Do I need to switch to a safer chemical?” Don’t be silly, you can just start all over again.

It’s a piece of cake. Just pick a similar substance identity and a new CAS number, then you’re good to go again. And, you don’t have to start a new shell company. Just change the name and you can use the same one over and over again. Selling toxic chemicals in the EU has never been this easy.

Good luck!

But, it obviously shouldn’t be this way

This text is for all intents and purposes satirical. The aim of the text is to shed a light on the dubious practices of laggard companies that are unwilling to change to safer chemicals. ChemSec does, by no means, encourage companies to follow the steps presented in this guide. Instead, stricter measures are needed to deal with the situation. Here’s what should be done:

No data no market
The biggest problem is that a thorough control of registration dossiers happens only after a registration number has been issued. To solve this, the completeness check must be considerably more profound and include an actual analysis of the data. The fact that ECHA is currently not allowed to do this by REACH needs to change.

Pick up the pace
With the knowledge that dossiers with no – or very little – actual data are on the market, the dossier evaluation must pick up the pace considerably. Furthermore, intentional delay, confusion and obstruction from industry must never be rewarded with longer evaluation times.

Stronger enforcement
The first and foremost “punishment” for any company selling chemicals on the EU market should be the revocation of their registration number. If no data is provided or if the company obstructs the evaluation process, they shouldn’t be allowed to sell the chemical until sufficient data has been submitted.