28 Nov 2018
Strict Limit Proposed for DecaBDE in Recycled Plastics Used to Make Toys and Other Consumer Goods
Persistent organic pollutants
Persistent organic pollutants (“POPs”) are dangerous carbon-based chemical substances that persist in the environment for long periods and which are transported through natural atmospheric and oceanic processes far from their actual sources, bioaccumulating through the food chain in the bodies of wildlife and humans. This group of priority pollutants consists of pesticides, industrial chemicals and unintentional by-products of industrial processes.
In 2017, DecaBDE was listed as a new POP for global elimination during the eighth meeting of the Conference of the Parties to the Stockholm Convention. The substance is widely used in plastics recycled from electronic and electrical products and other waste. The recycled plastics are then used in housings of computers and televisions, wires, cables, pipes and carpets. The substance is also used for applications in textiles, adhesives, sealants, coatings and inks. A recent study, conducted by the Czech non-governmental organisation Arnika, showed traces of the dangerous chemical in plastic toys in the EU, potentially harming children’s health.
International legal framework and EU implementation
The EU’s reduction and elimination of POPs is subject to two legally binding international laws, which supersede EU legislation. These, which the EU signed and ratified, are the following international agreements that seek to reduce and eliminate the production, use and releases of POPs: the UNECE Protocol and the Stockholm Convention.
For effective implementation of these agreements, the EU adopted the POPs Regulation which complements earlier legislation and aligns EU legislation with the provisions laid down in the international agreements. It contains rules on the production, placing on the market and use of chemical substances, and management of wastes and measures to reduce unintentional releases of POPs. To a certain extent, the POPs Regulation goes further than the international agreements by, for instance, applying stricter limits for the elimination of POPs.
Recast of the POPs Regulation
On 22 March 2018, the European Commission presented a proposal to recast the POPs Regulation. The recasting process has given the European Parliament the opportunity to update aspects of it. On 15 November 2018, 576 Members of Parliament voted in favour of the recast, with 23 against and 27 abstentions. The substance DecaBDE will be added to the POPs Regulation and its intended use is prohibited. Derogations only apply to DecaBDE occurring as an unintentional trace contaminant under the POPs Regulation. As for this exempted use of DecaBDE, the European Parliament voted to adopt Amendment 25, which applies a derogation limit of 10 mg/kg. The European Parliament turned down Amendment 37, which would set a higher derogation limit of 1000 mg/kg for DecaBDE concentrations.
Hong Kong traders may like to know that the manufacturing, placing on the market and use of DecaBDE in higher concentrations remains allowed to a certain extent and under certain conditions as per the amendment. For example, the production of an aircraft or the production of spare parts for aircrafts and certain spare parts for motor vehicles within the scope of Directive 46/2007 of the European Parliament and of the Council fall under the derogation. Products that have been placed on the EU market before the date of entry into force of the amended POPs Regulation are also exempted. Electrical and electronic equipment within the scope of Directive 65/2011 (the “RoHS Directive”), can also contain DecaBDE.
The European Parliament’s amendment concerns a first-reading vote and is not a final decision. EU Member States (comprising the Council of the EU) have yet to finalise their position regarding the recast of the POPs Regulation. In so-called trilogue negotiations between the Council and the Parliament, mediated by the European Commission, EU Member States may still push through the higher derogation (i.e. allowable) limit for recycled plastics. The trilogue negotiations will likely take place in early December 2018.
Serious consequences for EU recycling industry
In light of these negotiations, the recycling industry in the European Union advocates for a 1000 mg/kg limit, explaining that the 10 mg/kg limit implies an end of the recycling of plastics from waste electric and electronic equipment and from scrapped cars. These plastics would then have to be disposed of as hazardous waste through incineration. Consequently, targets set for e-waste recycling and the objectives of the EU plastics strategy cannot be met. This contradicts the objectives pursued by the Union’s Circular Economy Strategy, according to the EU recycling industry.
Binding limit set by the European Commission
Irrespective of the POPs Regulation’s future amendment, Hong Kong traders selling goods that contain DecaBDE should be alerted to the restriction imposed under Regulation 1907/2006 (the “REACH Regulation”). The European Commission has restricted the use of DecaBDE in products in a concentration equal to or greater than 1000 mg/kg (0.1% by weight), in accordance with Entry 67 of Annex XVII of the REACH Regulation. As from 2 March 2019, the Entry bans the use of DecaBDE as a substance and limits the content of DecaBDE in articles up to 0.1%, with only a limited number of exemptions. These comprise articles placed on the market before 2 March 2019, electrical and electronic equipment falling under the RoHS Directive, spare parts for vehicles or machinery that are manufactured before 2 March 2019, and the manufacture of aircraft, or their spare parts, before 2 March 2027.