ECHA

Mr Benedikt Vogt is working as an enforcer for the regional government of Baden-Wuerttemberg in Germany. In his work, he meets a lot of companies and sees how RE ACH and CLP function in practice. In the following interview, Mr Vogt shares his impressions on how well the implementation is proceeding. Generally, manufacturers seem to know their obligations better than importers or sales companies.

Mr Benedikt Vogt considers a uniform enforcement vitally important.

Mr Vogt, what is your task in the Depart­ment of Chemicals, Product Safety and Market Surveillance, and how did you become an enforcer?

My main tasks are related to the safety of chemicals and the enforcement of the REACH and CLP regulations. I have been involved in the chemicals legisla­tion for the last 10 years. Before taking up my current post, I worked for a trade association, so I also know the compa­nies from the other side. During those years, I also participated in the work of the Committee for Dangerous Substanc­es (Ausschuss für Gefahrstoffe).

What does your working day look like?

My tasks are very varied, and every day is different. Most of the time, I am com­municating with companies, either visit­ing the company in person or contacting them by phone. Every day, I encounter new questions regarding the implemen­tation of REACH or CLP. The major­ity of the planning of our enforcement activities is done at the Ministry, but I coordinate the technical part in our De­partment. We are a team of five people working on the safety of chemicals.

How is enforcement organised in Ger­many?

The 16 states (Bundesländer) are in charge of the enforcement, and the or­ganisation varies somewhat from state to state. To ensure a uniform enforce­ment, a federal working group discusses topical enforcement issues and agrees on enforcement projects. In Baden-Wuerttemberg, the Ministry for Environment, Nature Conservation and Traffic defines the main targets of the enforcement in line with the Mar­ket Surveillance Regulation, working out concepts whilst also coordinating and publishing market surveillance pro­grammes. The four Regional Councils (Regierung­spräsidien) take care of the practical enforcement. We have a good situation because the Regional Councils recruited and trained 34 new staff members espe­cially for this task. The REACH and CLP enforcement was combined with other market surveillance areas like product safety or the substance bans of the RoHS directive.

You said that the Ministry is publishing the enforcement plans. Does this mean that companies know what to expect dur­ing the year?

I would say yes, more or less. Of course not all details are published but the main concepts are made public. Also the Mar­ket Surveillance Regulation requires that concepts are worked out and published.

So what are your inspectors doing right now?

We are doing active market surveillance. For 2011, we have eleven priority areas for REACH and CLP enforcement. The Forum project REACH-en-Force 2 is one of them. We also have projects on substance restrictions under REACH, checking the labelling under CLP and Safety Data Sheets, for example. We would also like to have some joint projects with customs authorities – we already had one last year.

Will you also check notifications of sub­stances in articles?

This topic is not on the priority list, but it will be definitely discussed during en­forcement visits. We have a big project on information requirements, Article 33 of REACH and Substances of Very High Concern (SVHCs) in articles. We will not only check compliance with the information requirements but will also make a so-called system check. This means that we would like to know how the management is dealing with SVHCs in general and how they are analysing their obligations.

Of course we also react to consumer complaints, and we are increasingly con­tacted by companies that inform us about their competitors' failure to com­ply with REACH or with CLP-labelling duties.In our work, we are supported by the European Market Surveillance System (ICSMS). It has proven to be extremely useful. For instance, if the first company that places a product on the market is not from our State Council area, we can contact the authority in charge via ICSMS and forward the documents elec­tronically immediately. This is very fast and very practical.

Do you have the feeling that REACH and CLP obligations are clear to companies?

In general, companies are very well in­formed, especially larger manufacturers who often even have specific staff for REACH. But there are big differences between companies. Often they need additional information, and we advise them during the visits. We regularly see cases of non-com­pliance, especially with restrictions in Annex XVII of REACH. Especially if the use of a substance has recently been banned or restricted, like in the case of a lamp fuel that presents an aspiration hazard, or the foams containing isocya­nides used at construction sites, just to mention two examples.

But we even meet companies, often importers, who totally fail to comply with REACH and CLP. Usually they do not realise that they are selling a chemi­cal substance and not an article. When their main activities are not related to chemicals, they might not realise that they have these obligations.

The main obstacles include the question of what an article is and the rules con­cerning the Only Representative (OR). It is not always clear what information is needed when working with the OR and the OR should also know who they represent.

Additionally, the quality of nearly all Safety Data Sheets needs to be improved, and many of them even contain really bad mistakes.

However, I would like to stress that the overall situation is absolutely positive. The majority of the companies are mak­ing great efforts to comply with the leg­islation, and they are working together with the enforcement authorities in a very constructive way.

How can companies be assisted?

REACH and CLP are quite complex, and there are around 8000 pages of guidance. It is difficult for small and medium-sized enterprises (SMEs) to get acquainted with it all. The networks are an important support for these compa­nies. They provide information events, advice and internet pages that are spe­cially targeted for SMEs. In our state, the network REACH@BadenWürttemberg has greatly contributed to the generally good situation.

The absolutely positive thing is that our work seems to have a sustainable effect. The sales companies which hear the rules for the first time, put pressure on the manufacturers, and they in turn react more quickly and take corrective measures.

What do you expect from the work of the Forum for Exchange of Information on Enforcement?

A uniform enforcement is definitely one of the most important things from our point of view. It is important both for fair competition and for the reason that companies often have activities in several European countries. Therefore coordination is really vital.I would find an online catalogue of de­cisions on borderline cases very useful. One could consult the list to see, for instance, if a differentiation between an article and a substance has been made by another authority. This list should then be continuously updated.

Feedback from enforcement back to the Forum is then important. We can learn through practice.

Is there something ECHA could do?

For enforcers, it would be important to have access to REACH-IT very soon. Without it, the enforcement of REACH and CLP will not be as effective as it should.