Austria: Industrial Chemicals Bill 2017: Recent Developments

Last Updated: 3 October 2017
Article by Mandi Jacobson

Nearly all ingredients in cosmetic products are regulated as industrial chemicals under the Industrial Chemicals (Notification and Assessment) Act 1989 (Cth) (the IC(NA) Act).

The manner in which industrial chemicals are to be regulated in Australia is set to change, following the Senate Community Affairs Legislation Committee's (the Committee) recommendation to pass six Bills that were introduced earlier this year (1 June 2017), namely the:

  • Industrial Chemicals Bill 2017;
  • Industrial Chemicals (Consequential Amendment and Transitional Provisions) Bill 2017;1
  • Industrial Chemicals (Notification and Assessment) Amendment Bill 2017;2
  • Industrial Chemicals Charges (General) Bill 2017;
  • Industrial Chemicals Charges (Customs) Bill 2017; 
  • Industrial Chemicals Charges (Excise) Bill 2017,3

(together the six Bills).

On 8 August 2017 the Committee's report (the Report) was released and tabled in parliament. The Report presents the Committee's conclusion on submissions made by various groups and stakeholders following the introduction of the six Bills. A list of submissions to the inquiry and a list of witnesses who gave evidence to the Committee can be found here and here.

Together the six Bills are intended to reform Australia's system of industrial chemicals regulation and establish a new scheme, the Australian Industrial Chemicals Introduction Scheme (AICIS). The AICIS is intended to replace and simplify the existing National Industrial Chemicals Notification and Assessment Scheme (NICNAS), reducing the regulatory burden on introducers.

According to the NICNAS Consultation Papers, there will be a 70% reduction in the number of new industrial chemicals that are subject to pre-market assessment, and approximately 99% of new industrial chemicals will no longer be subject to assessment by NICNAS. This marks a significant reduction in regulatory oversight for industrial chemicals in Australia.

Stakeholders had opportunities to review the six Bills during four rounds of public consultation, which included the release of five public consultation papers and eight public workshops.  The Department of Health (DoH) conducted public consultation on the fifth paper relating to the delegated legislation while the six Bills were being considered by the Committee.

The Industrial Chemicals Bill 2017 (the Main Bill)

The Main Bill proposes a number of changes including the establishment of the AICIS (to replace the NICNAS).  Importantly, the Main Bill is intended to encourage self-regulation for chemicals that are considered 'low risk'.

The Main Bill has ten parts4 and establishes six different categories in which chemicals may be introduced (either imported or manufactured in Australia).  The six categories will align with risk, based on objective criteria.  The six categories are:  Listed introductions, Exempted introductions, Reported introductions, Assessed introductions, Commercial evaluation introductions, and Exceptional circumstances introductions.

Exempted introductions 

The Explanatory Memorandum explains that 'exempted introductions' will be for 'very low risk introductions, based on hazard and exposure', such as polymers of low concern and chemicals where the introducer has the relevant toxicological testing to demonstrate that the chemical is not hazardous.

Only record keeping and an annual statement of compliance will be required.  The DoH explained that the reason for adopting this approach was "...to introduce a category that would encourage industry to move to cleaner, greener chemistry...".

Concerns raised about the proposed exempted introductions category included that the category permits chemicals to be introduced without notifying the regulator; and the Main Bill does not require the regulator to track low risk chemicals.  That is, a large number (or a large volume) of chemicals could be introduced without the regulator or the public knowing about them (however, the DoH clarified that, under the existing regime, 97% of chemicals are already being introduced under an exempted category where the introducer determines that there is 'no unreasonable risk').

Submitters raised concerns that a low risk chemical may, with additional exposure, be considered hazardous and the regulator will not know how much of that chemical has been introduced or where it has been introduced.  The National Toxics Network said in its submission "When it comes to the management of industrial chemicals, history has repeatedly shown us that chemicals we were told are 'low risk' today, often turn out to be tomorrow's toxic chemical disasters, with the community, environment and economy bearing the costs".  The Greens expressed the view that leaving the public with no public record of what they are exposed to could lead to 'serious issues'.

As the Public Health Association of Australia explained: "...the proposed regulation for the new expanded category of exempted chemicals would enable the introducer to self-assess the chemical for its risk to human health and the environment against our guidelines and to introduce the chemical with no notification to the regulator. There would be no record with the government or for the public of the chemicals introduced into Australia under the exempted category".

In response, the DoH explained that it considers that the system of evaluations in the Main Bill is more flexible than the existing regime and would allow it to respond more effectively.  Additionally, the Main Bill requires introducers to keep records for five years and failure to provide the Executive Director with the necessary information may result in penalties; and that requirements and penalties will both be strengthened by the Main Bill.

Industry representatives observed chemical regulation was only one part of the broader scheme that protects workers and the public; and that consumer law and occupational health and safety laws would still need to be complied with, thereby providing appropriate safe-guards to the public.

Details contained in the rules

The Main Bill provides that certain details about the operation of the scheme will be set out in rules made by the Minister. Some submitters had concerns that it was unclear what the rules might contain.  In response, the DoH described the fifth consultation paper as a plain English version of the rules and noted that additional consultation would be conducted once the draft rules had been formulated; and that significant parts of the scheme would be provided for in rules to ensure that they could be flexibly updated to reflect evolving science.

Animal Testing 

The animal test data ban implements a government election commitment to ban animal testing for new chemical ingredients from 1 July 2018 and encourages the use of alternative test methods (bringing  Australia into closer alignment with the European Union).

The proposed test data ban provides that if an application is made to introduce an industrial chemical that will solely be used in cosmetics, the application cannot include animal test data obtained from tests conducted on or after 1 July 2018 in circumstances prescribed by the rules.

Concerns were raised by a number of animal welfare organisations, such as the RSPCA, that the ban on the use of animal test data for cosmetics has been drafted to be very narrow and that it contains a loophole which would allow animal test data to be used in industrial chemicals introduced for multi end use.The DoH rejected any suggestion of a loophole.

Concluding comments

It will be interesting to see whether the six Bills, and in particular the Main Bill, are able to rebalance Australia's industrial chemicals regulation to provide a more flexible approach and reduce the regulatory burden on Australian businesses, while still maintaining public health and safety. As highlighted by stakeholders, there is a risk with industry alone self-assessing that they are 'very low-risk'.

Additionally, we await the finalisation of the 'rules' in the lead up to the commencement of Bill on 1 July 2018.

Footnotes

1.The Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017 provides for consequential amendments and implements transitional arrangements from IC(NA) Act to the new Industrial Chemicals Bill 2017.

2.The Industrial Chemicals (Notification and Assessment) Amendment Bill 2017 amends the IC(NA) Act to enable the early introduction of some aspects of the industrial chemicals reforms.

3. The Industrial Chemicals Charges (General) Bill 2017, the Industrial Chemicals Charges (Customs) Bill 2017, and the Industrial Chemicals Charges (Excise) Bill 2017 (together the Charges Bills) impose a registration charge on the introducer of a chemical to the extent that the registration charge is customs duty, excise duty or neither a customs nor excise duty respectively. The amount of the charge is to be prescribed by regulations

4. Part 1 provides for preliminary machinery provisions and definitions, including the definition of an industrial chemical for the purposes of the legislation.
Part 2 requires introducers of industrial chemicals to be registered, a Register to be kept and requires chemical introducers to pay a registration charge.
Part 3 establishes a new system of risk-based categorisation of industrial chemical introductions.
Part 4 provides a framework for the Executive Director to initiate evaluations of industrial chemicals or matters relating to industrial chemicals.
Part 5 establishes the Australian Inventory of Industrial Chemicals and provides for the inclusion, variation or removal of an industrial chemical from the Inventory.
Part 6 describes the information and reporting obligations of persons under the scheme and enables people to apply for confidential business information protection.
Part 7 provides for monitoring, inspection and enforcement powers under the Regulatory Powers (Standard Provisions) Act 2014.
Part 8 establishes the AICIS, the role and functions of the Executive Director and renames the Industrial Chemicals Special Account.
Part 9 implements Australia's obligations under certain international agreements, such as the Rotterdam Convention, and enables bans or restrictions on industrial chemicals subject to certain international agreements.
Part 10 contains miscellaneous provisions including a power to enable the Minister to make rules which will contain the operational detail of the scheme, and makes provision for applications and review rights. Part 10 also provides that animal test data should not be included with an application for a chemical to be used in a cosmetic product in some circumstances.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
25 Oct 2018, Other, New York, United States

Once again, Dentons is proud to bring together insurance industry leaders, lawyers and regulators for a full-day examination of the most current issues.

26 Oct 2018, Other, New York, United States

Selling your company may be the most important and complicated transaction of your life. To achieve an optimal outcome, you need to get educated.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions