Richard Reinis publishes "REACH EU Regulations Deadline of Dec. 1"

By Rich Reinis
Steptoe & Johnson

In the European Union, billboards, and media warn industry about the proximity of the first major deadline for REACH.  Most U.S. companies are unaware of the impending December 1, 2008 deadline, after which a failure to meet your obligations under REACH not only subjects you to fines, but also may completely shut you out of the EU’s apparel market.

What is REACH?

The Regulation (EC) 1907/2006 on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) establishes a new EU chemical regime.  However, REACH directly affects not only EU companies, but also non-EU manufacturers, formulators, exporters and producers of apparel.  The central objective of REACH is to transfer responsibility from national authorities to industry.  It is expected to affect more than 30,000 existing substances, irrespective of whether they are used individually, in preparations, or in final articles, such as textiles and apparel products.   In order to maintain uninterrupted market access, the pre-registration deadline for these substances, December 1, 2008, must be met.

What does REACH cover?

REACH regulates chemical substances on their own, in preparations (formulations) and released from articles (finished products).  This means that manufacturers of textiles and apparel, not only chemical companies, will have to address REACH requirements.   

For the textile and apparel industry, all substances in textiles and apparel that are intended to be released under normal or reasonably foreseeable conditions of use, and are present in articles above 1 metric ton per year per EU importer, must be registered with the European Chemicals Agency (ECHA).   Submission requirements vary depending on the hazard of the substance in question and the volume manufactured.  REACH provides transitional registration periods for so-called “phase-in” substances (mainly substances listed in the European Inventory of Existing Commercial Chemical Substances), but only if the substance has been pre-registered between June 1^st and December 1^st, 2008.

Additionally, the ECHA must be notified and certain specific information must be provided for each substance in an article that meets the “substances of very high concern” (SVHC) criteria, including:

• the substance is present in the articles in quantities totalling more than 1 metric tone per importer or manufacturer;

• the substance is present in the articles above a concentration of 0.1% weight by weight; and

• the producer or importer cannot exclude exposure to humans or the environment during normal or reasonably foreseeable conditions of use of the article, including disposal.

Finally, even substances in small quantities (under the 1 metric ton threshold for registration) may be subject to obligations under REACH, including those obligations concerning restrictions, authorisation and safety data sheets (SDSs).

Who does REACH affect?

REACH affects apparel manufacturers and exporters, textile producers and finishers, and dye and ink manufacturers.

Under REACH, American textile and apparel manufacturers, cannot directly pre-register substances.  Normally, this would mean that EU importers would be responsible for pre-registration.  However, rather than being tied to specific EU importers, REACH permits an American apparel exporter to appoint a registration agent to  assume the pre-registration obligations.

How do I know if my textiles and/or apparel are covered by REACH?

If you manufacture specialty fabrics, apparel or footwear designed to release substances, such as deodorants, anti-microbials, or other chemicals or metals, you are more than likely required to register those substances.  If you manufacture flame-retardant, permanent press or stay-dry fabrics, you may be using a "substance of very high concern" and be required to notify the ECHA.

To determine whether a company is required to register or notify ECHA of chemical substances that it uses in its textile and apparel products, ask yourself if there is an intentional release of a chemical substance or  are there substances in your textiles or apparel or footwear that are carcinogens or toxins.   If so, the issue then becomes the amount of this chemical substance imported into the EU by you each year.

What type of information must I provide if there are SVHCs in my apparel products or textiles?

Immediately after an SVHC has been added to the candidate list, REACH requires suppliers of articles containing SVHCs to forward information on the listed SVHC(s) contained in the article (above a concentration of 0.1% w/w) to the industrial or professional user (or distributor) being supplied with the article.  Suppliers must also, upon request, supply a consumer with the same information within 45 days of receipt of the request. 

Anything else I need to know?

Non-governmental consumer and environmental organisations are campaigning for the progressive removal of SVHCs in all contexts, wherever possible.  The International Chemical Secretariat, with the assistance of a number of non-governmental organisations (NGOs), recently published its Substitute-It-Now (SIN) list, which contains more than 200 hazardous substances that they believe should urgently be added to the candidate list for authorisation.  Companies using substances on the SIN list will need to develop strategies to manage increasing pressures from consumer groups and customers who may choose to use the list in the product specifications that they impose on suppliers.

Give me the basics.

If you are in the textile and apparel industry, be sure you have a comprehensive, REACH compliance strategy in place.  Additionally, consider seeking assistance from an outside REACH consultant who can help your company effectively and efficiently navigate this complex EU regulation. 

Rich Reinis is of counsel in the Century City office of Steptoe & Johnson LLP. He has contributed articles to CAN on legal matters for many years.  He would like to thank Laura Atlee in Steptoe’s Brussels office for her assistance with this article. Reinis has been intimately involved in the Los Angeles apparel business since 1972, when he became General Counsel to the California Mart.  He manufactured junior coats and suits.  His apparel law practice began in 1981.  He was the founder of the Compliance Alliance, formed to address issues of labor law compliance, and he lobbied state and federal officials on behalf of the apparel industry.  At the international firm of Steptoe & Johnson, Reinis advises corporate clients on formation, protection of assets, factoring, development of intellectual property, sales and merchandising, relations with overseas suppliers and retailers.  He is a member of Steptoe’s highly experienced REACH team, comprising lawyers as well as technical and regulatory specialists with more than 30 years of experience handling EU regulatory matters.  The team is based in Brussels and frequently coordinates with regulatory lawyers in London and Washington, DC.  For additional information on firm capabilities and contact details, visit www.steptoe.com/REACH.