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PFAS: businesses advised to input into chemicals regulation consultation

Scientist examining toxic water samples

Manufacturers operating in the EU should consider the extent to which the chemicals they use in the production process might be affected by proposed new regulation – and take the opportunity to make their views heard on potential reform, experts in product liability have said.

Jacqueline Harris and Fiona Cameron of Pinsent Masons were commenting ahead of the imminent closure of a consultation that is likely to be influential in shaping future regulation of pre- and polyfluoroalkyl substances (PFAS) in the EU.

PFAS are used in the manufacture of a great range of consumer products, from beauty and healthcare products, to clothing, semiconductors, medical equipment, in food and drinks packaging, in cleaning chemicals and in firefighting foam, among other things. Different chemicals serve different purposes – depending on the chemical and the product, they help, for example, make products resistant to oil, water, or heat.

PFAS are often colloquially referred to as ‘forever chemicals’ because they degrade very slowly when used and in the environment. Amidst concern over the potential harm the substances might cause to people and the environment, if they enter water systems and the food supply chain, for example, as well as the cost of clean-up, consideration is being given in many jurisdictions to restricting their manufacture, sale, and use – including in the EU.

The European Commission and EU member states are considering targeted proposals that, if implemented, would specifically restrict the use of PFAS in firefighting foams. The scientific committees at the European Chemicals Agency (ECHA) endorsed those plans in June. However, more radical proposals to place widespread restrictions on PFAS uses were put forward earlier this year by five European countries: Germany, Denmark, the Netherlands, Norway and Sweden. A number of industry bodies have raised concerns with those plans, which are currently being scrutinised by scientific committees within the ECHA.

To inform how those scientific committees respond to the five countries’ proposals, the ECHA opened a consultation in March in which it invited stakeholders to “send in scientific and technical information” on the manufacture, placing on the market and use of PFAS. The consultation closes on Monday 25 September.

“In essence, the proposed restriction would ban the manufacture, placing on the market and use of PFAS above a set concentration limit, with an 18-month transition period after entry into force, and use-specific time-limited derogations for several sectors,” said Cameron. “The time-limited derogations and their duration – either five or 12 years from the end of the general transition period of 18 months – are based on socio-economic considerations and the availability of alternatives.” 

“In addition, some time-unlimited derogations are proposed, such as for PFAS used as active substances in plant protection products, biocidal products, and human and veterinary medicinal products, as use in those contexts are already addressed under the respective regulatory regimes,” she said.

Harris added: “A clear thrust of the information-gathering exercise being undertaken through the ECHA’s consultation is understanding the extent to which alternative substances are available that could perform the same function as would-be-prohibited PFAS. This is manufacturers’ opportunity to present the technical and economic cases in relation to substitution.”

Once the scientific committees have adopted a view on the proposed new restrictions, the ECHA will send the final opinion to the European Commission, which will make the decision on whether to include the proposed restriction in REACH (the regulation on the registration, evaluation, authorisation and restriction of chemicals).

A report by the Guardian in July, citing leaked documents, suggested that the European Commission is considering more limited restrictions on the use of PFAS than Germany, Denmark, the Netherlands, Norway and Sweden have proposed.

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