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Deficient EU Tracking of Hazardous Chemicals: Report Presents Two Case Studies Relevant to Consumer Goods Traders

A new report published on behalf of the European Environmental Bureau (EEB) earlier this year has highlighted the failure of the current EU legal framework to ensure that information on dangerous chemicals is being correctly passed along the whole lifecycle of materials being used, including at the waste stage. The report comes at an opportune time, when the European institutions are working on the EU’s Circular Economy package, which is intended to ensure that materials can be used again, within a closed loop so as to avoid waste, but with adequate precautions taken against harmful chemicals. Thus, the report argues, current EU legislative provisions have to be reinforced, so as to give companies who use recovered materials access to detailed information in order to comply with current environmental and health regulation.

Accordingly, the authors reiterate in their report that EU Member States would do well to set up an information system for chemicals contained in materials circulating within the EU, to ensure safe reuse. Currently, the main challenge is believed to be the monitoring and tracking of chemicals, not only through the supply chain of economic operators, but also at the waste stage. In light of these objectives, the development of a database on the chemical composition of all materials placed on the EU market would be ideal, according to the report. Additionally, companies should also be encouraged to invest in tools, such as embedded markings or smart tags, which would allow such information to be linked to the actual material collected from waste.

An interesting part of the report is the discussion of two hypothetical cases (with fictional company names), both concerning commonly used consumer products that will be familiar to Hong Kong sellers. These concretely illustrate the interaction of the EU’s chemical, product and waste legislation as well as the strengths and failures of the current system.

The first case study relates to a mattress made of latex foam and two substances, i.e., flame retardants: HBCDD (used for textile covering) and DecaBDE (used to treat latex foam). The report notes that for this commonly and widely available consumer product no specific EU product or waste stream legislation exists.

In the present case, the substance DecaBDE is being imported by a company called ChemImport, while HBCDD is both imported and manufactured in the EU by a company called ChemCo. In accordance with the complex CLP Regulation, ChemCo and ChemImport are both obliged to comply with classification, labelling and, eventually, notification requirements. At the same time, under the REACH and POPs Regulations the aforementioned companies are obliged to provide hazard, storage and safety information to the recipient of the substances within the supply chain, in the form of a Safety Data Sheet.

Subsequently, the manufacturer of the foam (ManuPartsCo) uses DecaBDE, supplied by ChemImport, to make the foam flame resistant to satisfy the technical specifications of its main customer, a manufacturer of mattresses (SweetDreamsCo). The manufacturer of the textile (TextileCo) also applies HBCDD, supplied by ChemCo, to the textile. According to the right to obtain the Safety Data Sheet from their respective suppliers, both ManuPartsCo and TextileCo have been aware of the hazardous properties of these substances. This means that, as a minimum, TextileCo and ManuPartsCo are obliged to inform SweetDreamsCo that the foam and the textile contain, respectively, DecaBDE and HBCDD. SweetDreamsCo then sells the mattress, aware of the presence of these substances.

When, eventually, the mattress is discarded and becomes waste it is collected by a company called WasteCo. Since the rules under the EU’s waste framework Directive apply, the mattress falls within the category of ‘municipal waste’ and is classified as non-hazardous, despite the substances it contains. Unfortunately, WasteCo has no right to access ChemCo’s and ChemImport’s Safety Data Sheets, which would have been helpful and so – according to the authors – ought to be allowed.

Subsequently, the mattress’s parts (foam and ticking) are bought by a company specialised in the recycling of mattresses (RecycleCo) as ‘non-hazardous’ waste. Following this, CarCo, a manufacturer of cars, decides to buy, from RecycleCo, the foam for the seats and the textile for the acoustic soundproofing system of its new car. Due to the fact that information on hazardous chemicals has been lost during the product’s lifecycle, CarCo is unlikely to have been informed of the presence of DecaBDE or HBCDD in the materials. The study thus demonstrates that materials containing dangerous chemical substances are routinely being reintroduced into the market, and there is scant awareness of this.

The second example is of a Liquid Crystal Display (LCD) television. An LCD is made of many components but, for the sake of simplicity, one of them is focused on, i.e., cathode fluorescent lamps (CCFLs), which contain mercury. Unlike the earlier example (mattresses) there is plenty of EU legislation (including the WEEE Directive, among other laws) concerning TVs.

The manufacturer of the TV (HighTechCo) is not established in the EU and sells the TV to a professional retailer located in the EU (ShoppingCo) which then makes the TV available to consumers on the EU market. HighTechCo, the manufacturer of the TV (even if it was manufacturing the TV in the EU), would not be subject to any obligations under the EU chemicals legal framework for mercury, despite the use of mercury to manufacture the TV. Under the RoHS Directive, although mercury is a generally prohibited substance, HighTechCo is allowed to use mercury in the CCFL incorporated in the TV provided that the quantity of mercury does not exceed the established limit. Under the Ecodesign Directive, HighTechCo has to comply with specific information obligations regarding mercury.

Under the RoHS Directive, ShoppingCo, as importer, would have to comply with certain obligations, such as ensuring that HighTechCo has complied with that Directive’s requirements. Under the Ecodesign Directive, ShoppingCo has to ensure that the TV placed on the market complies with the ecodesign requirements laid down for TVs, and must keep and make available the EC declaration of conformity and the technical documentation. Even though the TV has not yet become waste, the WEEE Directive would already apply. Accordingly, the company must provide information about preparation for re-use and treatment, and has to ensure that another TV which has become waste can be returned to its shops by the consumer free of charge on a one-for-one basis.

Eventually, once the TV becomes waste, the consumer brings it back to ShoppingCo which sends the TV as waste to RecoveryEEECo, a company specialised in the recycling of EEE. Regarding the presence of mercury, RecoveryEEECo has to follow certain steps to treat the waste. The WEEE Directive ensures that recyclers have access to information from producers on the location of dangerous substances within EEE. Therefore, CCFLs will be classified as hazardous waste and managed in accordance with national rules. Once the CCFLs are removed from the TV, RecoveryEEECo is allowed to recycle the remaining materials from it.

The above case scenarios provide an interesting outline to Hong Kong sellers of some of the chemical and waste laws and provisions that may be applicable to their products circulating on the EU market. The report notes, among other matters, that the best approach would be to impede the entrance of hazardous chemicals into the lifecycle of materials in the first place. To further this aim, an optimal implementation of the REACH chemicals regime – so as to facilitate the safe use of recovered materials in the circular economy – would be necessary.

Interestingly, the European Commission is expected to publish a paper later this year analysing whether the interactions between EU policies on chemicals, products and waste are hindering the transition to a circular economy.

For further information, please consult the EEB’s report.

Content provided by Picture: HKTDC Research
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