European Enforcement Of Chemicals Regulation: Delivering Zero Tolerance Of Non-Compliance?

The enforcement of chemicals regulation is under increased scrutiny across Europe. In the European Union, the Chemicals Strategy for Sustainability (2020) demands a ''zero-tolerance approach'' for non-compliance for ''[a]ll chemicals, materials and products produced in the EU or placed on the European market.'' While in the independent United Kingdom, the Health & Safety Executive has significantly increased its investigation and enforcement capabilities to fulfil its expanded role. Steptoe partners Darren Abrahams and Simon Tilling addressed the Chemical Watch Enforcement Summit in Brussels, speaking alongside EU and UK regulators, policy-makers, environmental NGOs and industry representatives, for a discussion on enforcement trends for chemicals regulations across the continent.

For those who could not make it in person, we share some key takeaways:

• The European Commission acknowledges that ''the proper enforcement is the cornerstone of credible and effective chemical legislation'' and is taking firm action to improve EU enforcement, including:
  
  • seeking the power to revoke REACH registration numbers from registrants with non-compliant dossiers;
  • considering a European audit capacity to evaluate member state enforcement capabilities;
  • establishing new automated and intelligent systems for customs, with obligations on importers to certify REACH compliance; and
  • exploring better access to justice, encompassing enhanced rights to complain and collective redress.
• The UK HSE has invested significantly in enhancing the capacity and capabilities of its enforcement function over a number of years. This has expanded further since the UK's exit from the EU. The UK's ambition is to move further towards proactive and intelligence-led enforcement of cases that will have the most impact.
• Online sales direct to European consumers remains a real concern, with a recent targeted pan-EU enforcement project (REACH-EN-FORCE 8) finding non-compliance rates for restricted substances, failure to meet duties for biocidal products and advertising rules under CLP all exceeding 70% for the sample products tested. The familiar frustration over locating the responsible economic operator for online sales was voiced numerous times by the regulators.
• The role of appeal bodies in clarifying the rules and upholding legal principles such as legal certainty and proportionality was acknowledged to be an essential part of the effective enforcement of chemicals law. Darren and Simon joined a panel with Marijke Schurmans, legally qualified member for the ECHA Board of Appeal, to explore the functions, powers and key enforcement decisions of the Board of Appeal and its UK equivalent, the First-tier Tribunal, General Regulatory Chamber.
• There was also an acceptance that chemicals regulations are complex, and while there was a need to crack down on deliberate free-riders whose non-compliance unfairly distorts the level playing field, a proportionate response was needed for those businesses who were struggling with the complexity of the regimes. Striking the balance continues to be a challenge.
• Finally, there was explicit acknowledgement that European chemicals regulation was already the most stringent in the world, with the EU's Chemical Strategy for Sustainability aiming to take it even further. Concerns were raised by both regulators and industry over the practice of restricting substances before analytical test methods are commercially available, and of restricting large numbers of substances such that it becomes unfeasible for compliance programmes to test for the full suite. The view from one speaker that 'laboratories will catch up' once restrictions are in place generated much debate, but recent regulatory action in both the EU and the UK suggests that such approaches will remain prevalent.

Although many of these themes will be familiar to industry, it is noteworthy that the issues are being discussed, and addressed, across Europe. The overarching message was that authorities are serious about an increase in intelligent, targeted enforcement to address non-compliance. Whether or not such action lives up to the EU's 'zero-tolerance' rhetoric remains to be seen. Companies will want to ensure they can demonstrate to authorities that their product compliance and stewardship programmes reflect very best practices, to manage their potential liabilities. 

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