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Rules & Regulations: A Long Way to REACH

By: Nicolas Gardères
Posted: February 27, 2009, from the March 2009 issue of GCI Magazine.

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REACH pre-registration was the first test. It will now be interesting to follow up on how the U.S. companies are going to comply with the new communication requirements that have been in force since October 28, 2008—the day the ECHA published a “candidate list” of 15 substances (which was reduced to seven in January 2009) to be included in Annex XIV of the regulation, i.e. substances subject to authorization. These substances have been deemed to be very toxic, and the EU’s goal is to encourage companies to substitute less dangerous chemicals. Annex XIV states that if a company exports a product to the EU market that contains more than 0.1% of a substance on the list, that company must inform its importers. Moreover, any European citizen has the right to know if a product contains such a substance, and can request such information by sending a letter to the company whose name appears on the package. That company has 45 days to answer the query.

A failure to answer would lead to a ban of the product on the EU market, following the principle “No Data No Market.” Finally, a very sensitive topic in relation to the regulations has not yet really been openly discussed by companies: how to share the cost of REACH implementation along the supply chain? In other words, who will pay for REACH? The way that companies will try and spread the costs related to REACH, such as any related administrative fees or costs of studies, will be an important legal and commercial issue. The implications of REACH on U.S. companies is already beginning to show, and it will be very interesting to see how U.S. companies deal with the major upcoming issues—particularly registration, costs and forming consortia.

Nicolas Gardères is a French scholar (University Paris-Descartes) and attorney specializing in environmental and European law with the international law firm Denton Wilde Sapte, where he is advising leading global companies on their implementation of REACH.