How Broad is EU’s REACH?

Europe has led on climate change. Now, it is staking out leadership on chemicals with the new REACH regulations.

By Ken Stier

The December adoption by the European Union of a new community-wide chemicals regulatory regime is still reverberating through the $2.56 trillion global industry, which is struggling to grasp the enormity of the coming changes. The principal aim of the new regime—known as REACH (Registration, Evaluation, Authorisation, Restriction of Chemicals), which comes into force in June—is to enhance environmental and public health protection. Although no hegemonic notion of extraterritoriality is asserted, the new provisions apply to chemicals (and products made from chemicals) manufactured in Europe, as well as those imported into Europe, effectively raising standards internationally. The U.S. industry exported $186 billion worth of chemicals to Europe in 2005.

Robert Donkers, a founding REACH co-author, and presently the environmental counselor at the European Commission office in Washington, says the agreement represents a “paradigm shift”—moving the burden of establishing that chemicals can be used safely from public authorities to industry. This embeds the principle of “producer’s responsibility” as chemicals make their way downstream into the vast world of finished goods. It also snuffs out the safe-until-proven-otherwise pass that chemicals have long enjoyed, including those “grandfathered” by earlier laws. In addition, there are measures designed to encourage the development of safer substances, sometimes referred to as “green chemistry,” which regulators hope will eventually enhance European industry’s competitiveness.

In practice, REACH presents industry with a daunting informational challenge. Not only do manufacturers have to present comprehensive data about all substances greater than one ton (and in collaboration with other producers of the same substance) but they must also generate risk assessment data for each use. A single chemical can have hundreds of uses: for example, a single solvent can be used in nail polish, to degrease engines and to stabilize colors in paints sold at Home Depot. Producers currently know how their customers use their product, but may have no idea how their customers’ customers will use the same compound. Now, they will have to devise a communication system with all those downstream users.

“It’s an amazing amount of work, it’s unprecedented in its scope and ambition,” says Steven K. Russell of industry trade organization American Chemistry Council (ACC). “It will redirect resources of toxicologists, product stewards and risk assessors into a very focused compliance mode for at least the next 11 years—the scope of its impact is enormous.”

The ACC vigorously opposed REACH, but according to Russell, this has less to do with the new informational requirements than with the critical shift from the present “risk-based” authorization system to one based on substances just being hazardous, as most chemicals are. Approximately 1,500 of the roughly 30,000 chemicals in use in Europe that are now subject to registration will need to go through an extra level of scrutiny before sales can resume.

This is an application of the “precautionary principle,” a concept disliked by the ACC, which is clearly more comfortable with voluntary measures. But even those voluntary measures that go beyond the U.S.’s once-pioneering Toxic Substances Control Act (1976) provide far less information than REACH will now require. The Europeans, in essence, have opted for a more stringent program that prohibits the use of chemicals of high concern until they are proven safe, in order to avoid lasting mistakes, explains Joel Tickner of the Center for Sustainable Production at the University of Massachusetts (Lowell). “This makes a presumption in favor of public health,” he says. It involves stricter rules, applied to all companies, down the supply chain. “That’s true product stewardship,” he adds.

The public health record alone would suggest this is a sensible policy. Chemicals increasingly show up at elevated doses throughout the environment and in our bodies. All too often, chemicals once considered innocuous have been proven noxious. The industry argues that better bio-­­monitoring has outstripped our understanding of how health is affected by chemicals or complex cocktails of them. But it is also true that we have a growing appreciation of our vulnerability, even at low doses, particularly that of children.

Of course, safety comes with a cost—always a controversial calculus. The ACC warned that REACH could cause enormous damage to the global economy. The European Commission estimates REACH will cost industry a little more than 5 billion euros over the next 11 years (the program’s initial registration phase) but that even the most conservative health saving estimates (based on extending the lives of Europe’s one million chemical industry workers) will be 10 times that during the course of 30 years. Additional billions could be saved in water purification efforts, if there was less chemical de-contamination needed.

REACH’s ripple effects may amplify over time. Its greater transparency (in contrast to the often closed-door health protection negotiations of the U.S. Environmental Protection Agency) will signal coming changes to the market. Witness American cosmetic makers, who are now following their European competitors’ earlier greening.

REACH at least points Europe towards a more whole-hearted embrace of “green chemistry.” The actual results, though, are subject to untested enforcement and the critical transitional support industry needs from government. In the United States, impressive government programs are woefully underfunded and, for industry, green chemistry is still a marginal add-on. If nothing else, Europe deserves credit for raising the aspirational bar.

Ken Stier is a freelance writer who has written for Fortune, TIME and Newsweek. He can be reached at kenstier@earthlink.net.