Overview
Much of the EU regulatory activities in the past 4 years has focused on chemicals, which are acknowledged to be a ubiquitous feature of modern life (in products, components, ingredients, tools, and packaging). Their use and life cycle impacts have never been under greater scrutiny. Policymakers also acknowledge that innovative chemistry has a critical role to play in solving the climate and biodiversity crises.
Strategy Direction
2023 marked a shift from last years’ flurry of new proposals. With the notable exception of the PFAS restriction proposal, the EU authorities have not put forward significant new proposals for chemicals regulation. Most importantly, the revision of the REACH Regulation – anticipated and awaited since 2022 – has been postponed until 2025, at least.
This does not mean, however, that authorities were or are idle. Many of the texts already proposed have continued their trajectory and are close to adoption in this legislative cycle, and the Commission and the European Chemicals Agency (ECHA) have used their powers under the existing legislation to pursue new measures for specific chemicals or groups of chemicals. We anticipate that the following initiatives will create impactful new obligations in 2024 and beyond:
- Eco-design product parameters, with reverberations throughout the supply chain: The Eco-Design Sustainable Products Regulation (ESPR) is expected to be adopted and enter into force in 2024. The Commission has started reviewing product groups that will be subject to eco-design parameters, and we understand these include textiles, aluminium, cement, and potentially chemicals and cosmetics.
- Green claims: The Commission published its proposal for a Directive to regulate green claims, and while the obligations will not become binding until implementation in Member States legislation, we expect consumer organizations to use the definitions and parameters in the proposal to keep companies and organizations responsible.
- Hazard-based measures: PFAS is the most prominent proposal for restrictions based on the substances’ persistent properties. The PFAS proposal will continue to be discussed by the ECHA committees, with the process expected to continue beyond 2024. In addition, national authorities and ECHA are initiating proposals based on the new hazard properties in the CLP Regulation, and in particular endocrine disruptors, PBTs, vPvB, PMTs, and vPvMs.
- Measures addressing groups of chemicals: ECHA has embarked on a program that looks at assessing the regulatory needs for groups of chemicals, and will propose measures accordingly.
- One substance one assessment: ECHA has recently outlined its plans.
In the UK, 2023 might be characterized as a year of high-profile missed deadlines and policy u-turns. For example, in January 2023, UK government committed in its statutory Environmental Improvement Plan to publish a Chemicals Strategy during 2023 to set out strategic priorities for addressing risks from chemicals and to encourage a more sustainable use of chemicals. While stakeholder groups continued to work hard behind the scenes to support this important initiative, the strategy (which was first promised back in 2018) has yet to materialize. More popular within the chemical industry was the UK government climbdown on its proposed revocation of all retained EU law (including most environmental and chemicals legislation). Instead, the scope of the revocation was replaced with a targeted list in May, and the much-heralded display of 'Brexit freedoms' was scaled back to, in effect, a legislative 'spring clean.' This was largely viewed as a welcome pivot since it avoided unnecessarily increasing the regulatory divergence between the UK and EU.
The big news for 2024 may well be changes to the substance registration framework under UK REACH. Industry has estimated that the replication of the full EU REACH registration model for the GB market will come at an industry cost of around £2 billion. As a result, the UK government has been asked to consider an alternative approach and were tasked with exploring a new model for substance registrations, with the stated objective of "placing a greater emphasis on improving our understanding of the uses and exposures of chemicals in the GB context." The first substantive announcement about what that model may look like was published in November 2023. Initial indications are that, should the new model be adopted, there will be significant additional divergence from the EU REACH model. We await further details in a forthcoming consultation in the new year, and would encourage all affected to contribute.
Divergence is of course not limited to the legislative frameworks themselves, and divergence in terms of the management of specific chemistries is also evident. While the UK is also considering a broad PFAS restriction, it is anticipated that it will adopt a narrower definition of PFAS (requiring two fully-fluorinated carbon atoms rather than one), targeting only the most persistent chemistries. As such, PFAS could be a fascinating case study on regulatory approach and results, given that the regulators in both markets have a near identical regulatory 'toolbox.' While we currently see a 'reactive' UK approach to regulation of chemicals, watching the EU's endeavors and then either following suit or taking a different view, it remains essential to track developments in both markets as they continue to diverge.
