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- Understanding the value of enforcement
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Understanding the value of enforcement
Since 2007, ECHA’s Enforcement Forum has coordinated almost 20 EU projects, each which the aim of prioritising, harmonising and improving the controls in place to check companies are following the rules set out under the EU’s chemicals legislation. We caught up with Katja vom Hofe, Chair of the Enforcement Forum, to ask her views on where enforcement has made an impact and what the future holds.
Forum projects are carried out by inspectors in national enforcement authorities who check that companies comply with their obligations under the REACH, CLP, PIC, POPs and biocidal products regulations.
The Forum carries out two types of project: pilot projects designed to check specific cases of potential non-compliance in selected Member States and their main projects – known as REACH-EN-FORCE or REF for short – which are far more extensive, focused on wider legislative obligations and usually span across all Member States as well as Iceland, Liechtenstein and Norway. The Forum also has a Biocidal Products Regulation subgroup that manages biocides projects.
“The ultimate aim is to take action and raise awareness when companies are not fully complying with chemicals law. Combining expertise allows national inspectors to address legal provisions more thoroughly and more efficiently than they otherwise could do alone at national level,” says Ms vom Hofe, who has been the Chair of the Enforcement Forum since 1 March 2017.
Tackling the highest non-compliance rates
Inspectors participating in Forum projects commonly find companies that are failing to fulfil their legal duties. Although this is a worrying trend, it shows that the topics being scrutinised are the right ones. “The fact we’re identifying and tackling non-compliances means that our project designs work and that they are shining a light on the areas of legislation where action needs to be taken the most,” Ms vom Hofe explains.
|Katja vom Hofe. |
|“We really have set standards that show it’s not enough to have the same regulations across the EU, but that they also have to be enforced in the same way to ensure that human health, the environment and all workers and consumers are equally protected.” |
From the many projects carried out, two particularly stand out for Ms vom Hofe because of the high rates of non-compliance detected.
In the restrictions project, national enforcement authorities inspected over 5 600 products such as textiles, jewellery, toys and childcare articles and found an average non-compliance rate of 18 %. “For us, this number was astonishingly high as restrictions are assigned to uses of chemicals that pose the highest risks to human health and the environment. It is even more concerning as most of the products checked were consumer products used by the general public and because the highest rates of non-compliance were for the restriction of phthalates in toys,” Ms vom Hofe explains.
In the pilot project on internet sales, more than 1 300 desktop inspections were carried out to check that internet advertisements used for the sale of hazardous chemical mixtures were compliant with obligations under the Classification, Labelling and Packaging (CLP) Regulation. Sellers need to make sure that the hazard types indicated on the product’s label are mentioned clearly in the advertisements. Non-compliances were found in more than 80 % of the inspections.
“This rate is extremely high and requires further attention. Online sales are growing all the time – even more so currently due to increased demand with people stuck at home because of the COVID-19 pandemic. As such, we decided to follow up this pilot with a major REF project, which is currently in its operational phase across all Member States,” Ms vom Hofe tells.
This project will expand on the findings of the pilot project and will target products for the general public and professionals that are available in private companies’ webshops and in marketplace platforms. Building on the pilot’s methodology, inspectors in 29 countries will check if buyers are informed about the existence of hazardous substances before their purchases are complete. The final results for this are currently expected at the end of 2021.
There is a need, in the future, to find synergies to make the best possible use of the limited resources available. One way to do this is to move away from checking individual duties and controlling multiple duties during each inspection.
“When checking if suppliers communicate information on substances of very high concern in articles to their customers, we could also check if duties related to REACH restrictions or obligations under other legislation under ECHA’s remit like POPs could be controlled at the same time,” Ms vom Hofe explains.
As well as checking multiple duties for legislation under ECHA’s portfolio, cooperation with authorities dealing with duties from other legislative areas will be extended in the future, for instance, to those dealing with occupational safety and health (OSH) when checking conditions in workplaces.
Another example is joint work with authorities responsible for dealing with chemicals recovered from waste. In the future, this could potentially be extended to include articles where substances need to be notified to the SCIP (substances of concern in articles as such or in complex objects (products)) database under the Waste Framework Directive. This would help inspections to support overarching policy priorities that all authorities contribute to, such as the circular economy.
“In this regard, it would be beneficial to move in a direction foreseen under the Commission’s Green Deal and to include the enforcement of duties that contribute to reducing the environmental impact of chemicals,” Ms vom Hofe confirms.
Cooperating with customs
Controlling imports of substances also plays a key role in protecting Europe’s citizens from harmful substances. “If we were able to check REACH and CLP issues for imports more easily at the border, this would have a profound impact on protecting our market and safeguarding human health and the environment. Controlling imports at borders and ports is vital. Finding non-compliant products that have already entered often complex supply chains within European markets is much more difficult,” Ms vom Hofe says.
Cooperation with customs authorities is something that the Forum has been doing and will continue to build on, however, one stumbling block is that customs authorities use different identifiers for products than those used under REACH and CLP. For trade between the EU and third countries, customs uses a system of 10-digit TARIC codes, which show the various rules that apply for specific products when imported into the EU.
“Unfortunately, these TARIC codes are not available for all substances under REACH and CLP. However, the Commission has taken action to integrate substances from the REACH Authorisation List and restriction entries into the TARIC system. This will certainly make it much easier to control these substances when they are entering the EU at the border,” Ms vom Hofe explains.
Looking at POPs in the future
Continuing to looking ahead, the Enforcement Forum has been given a mandate to coordinate a network of Member State enforcement authorities under the Persistent Organic Pollutants (POPs) Regulation, in a similar way to how it manages the activities under REACH, CLP and PIC.
“We will consider POPs when we design enforcement projects and when we develop guides and training materials for inspectors. Specifically for this task, we will look to tighten cooperation with national health, environmental and waste authorities and include the enforcement of substances regulated under the POPs Regulation in projects that are addressing REACH duties, so I would expect that we would see such a combined REACH-POP project soon,” Ms vom Hofe confirms.
There are ongoing discussions on a proposal to include the enforcement of the market control of substances regulated under POPs in the pilot project on recovered substances, which is expected to be operational in 2021.
Levelling the playing field for companies
It is not always easy to measure the success of enforcement activities in terms of whether they have improved compliance across Member States, because this requires data on past levels of compliance. “To assess this, we really would need more data and to conduct follow-up projects on the topics we have already covered. This would enable us to spot trends and to make real comparisons that would signal whether the controls we put in place have the desired impact,” Ms vom Hofe tells.
While it would require more long-term follow-up activities to fully understand the impact of Forum projects, it is clear that they offer value for industry. “The projects raise awareness of the duties companies need to comply with. Checking compliance at the national level, identifying where issues exist and synchronising how we addressed them across Europe plays a crucial role in creating a level playing field for companies operating on the EU market,” she adds.
A blueprint for other policy areas
Ms vom Hofe feels that while the Forum is a unique body, it offers a good blueprint for other policy areas to follow in terms of setting up some standards for harmonisation of enforcement and spreading them further.
“I’m very proud of the work we’ve been able to do so far and our achievements show that we’ve done a lot to harmonise enforcement across the EU and protect citizens. There aren’t many comparable entities to the Forum in other policy areas. We really have set standards that show it’s not enough to have the same regulations across the EU, but that they also have to be enforced in the same way to ensure that human health, the environment and all workers and consumers are equally protected,” Ms vom Hofe concludes.
Interview by Paul Trouth
Published on: 28 May 2020
Top image: © Pexels/Startup Stock Photos
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Biocidal Products Committee:
30 November-4 December (tentative)
Committee for Risk Assessment:
6-8 October (RAC-52B);
30 November-4 December (tentative);
7-11 December (tentative)
Committee for Socio-Economic
30 November-4 December (tentative);
7-11 December (tentative)
Member State Committee:
7-11 December (tentative)
Management Board meeting: