Last reviewed 18 August 2021

In this feature article, Caroline Raine looks at the role of ECHA in enforcement and the activities of the Forum for Exchange for Information on Enforcement (Forum).

Introduction

The European Chemicals Agency (ECHA) has no enforcement responsibilities. It is an agency that provides support to companies through information and tools.

ECHA states on their website that:

“We, together with our partners, work for the safe use of chemicals”.

“We are the European Chemicals Agency, an agency of the EU. We implement the EU’s chemicals legislation to protect your health and the environment. Our work also contributes to a well-functioning internal market, innovation and the competitiveness of Europe’s chemicals industry.”

Whilst ECHA does not carry out any enforcement activities, they do host the Forum for Exchange for Information on Enforcement (Forum).

Forum REF Projects

One of the main activities of the Forum is the REACH-EN-FORCE (REF) projects.

The intention of these projects are to ensure consistency, harmonisation across all EU Member States. All Member States work together to ensure that the enforcement is of the same standard and quality across the EU, but they also work to ensure that compliance with the regulations is met. Of particular interest are the REACH, CLP and PIC regulations.

ECHA describes on their website the steps in establishing a REF-project:

  • “Forum members, ECHA, and accredited stakeholder organisations (ASOs) submit their proposals;

  • “The Forum working group on Prioritisation of REF projects creates a list of potential subjects for the REF-project to focus on;

  • “The Forum as a whole selects and approves the project at one of its plenary meetings.”

To date there have been 8 REACH-EN-FORCE projects:

  • REACH-EN-FORCE-1: Registration, Pre-Registration and Safety Data Sheets.

  • REACH-EN-FORCE-2: Obligations of Downstream Users - Formulators of mixtures.

  • REACH-EN-FORCE-3: Inspection and enforcement of compliance with registration obligations by manufacturers, importers and only representatives in close cooperation with customs.

  • REACH-EN-FORCE-4: Restrictions.

  • REACH-EN-FORCE-5: Exposure Scenarios, extended SDS, RMM and OC.

  • REACH-EN-FORCE-6: Classification and labelling of mixtures.

  • REACH-EN-FORCE-7: Enforcement of Registration obligations after the last registration deadline in cooperation with customs authorities including the verification of the strictly control conditions applicable to the substances registered as intermediates.

  • REACH-EN-FORCE-8: Enforcement of CLP, REACH and BPR duties related to substances, mixtures and articles sold online.

More detail and the written reports can be found on the ECHA website.

Other projects

Other enforcement projects that have been undertaken by the Forum include:

  • Pilot project on cooperation with customs in enforcement of REACH restrictions and CLP labelling.

  • Survey on OSH-REACH enforcement interactions.

  • Forum Pilot Project on Substances in Articles.

  • Forum Pilot Project on the control of PIC.

  • Forum Pilot Project on CLP focusing on control of internet sale.

  • Second Forum Pilot Project on Authorisation.

  • Forum Pilot Project on Child-resistant fastenings.

  • First Forum Pilot Project on Authorisation.

  • Forum Pilot Project on CMRs and Skin Sensitisers.

  • Pilot Project on Intermediates.

  • Forum Reach Enforcement Project on Annex XVII Restrictions Concerning PAHs in Tyres.

More detail and the written reports on these projects can be also found on the ECHA website.

Future projects

ECHA has published the main actions and outputs of the Forum for 2021 and 2022, which are listed below.

  • Continue preparing, executing and reporting on Forum-coordinated REACH enforcement projects described in other sections of this document. In particular select the subject of eleventh Forum-coordinated REACH enforcement project (REF-11). [2021]

  • Prepare the report of the eighth Forum-coordinated REACH enforcement project (REF-8) focusing on internet sales of chemicals and a guide for enforcement based on the experience gathered in that project. [2021, 2022]

  • Prepare the manual for the tenth Forum-coordinated REACH enforcement project (REF- 10), on REACH and POP restrictions on hazardous substances in various mixtures and articles, and support inspectors during implementation phase. [2021, 2022]

  • Continue establishing best practice in enforcement and testing enforcement approaches by running Forum pilot projects. [2021, 2022]

  • Prepare the pilot project on classification of mixtures including detergents and cleaning products. [2022]

  • Continue to examine enforcement proposals and deliver advice on enforceability of restrictions. [2021, 2022]

  • Continue to ensure efficient and timely enforcement of ECHA decisions, such as non- compliance with ECHA’s dossier evaluation decisions. Make best use of data and expertise to maintain interlinks between ECHA regulatory processes and national enforcement. [2021, 2022]

  • Continue to support enforcement authorities by developing and delivering training programmes for national trainers and inspectors. [2021 (BPR only), 2022]

  • Continue to support enforcement by the national enforcement authorities via improvement and thereafter maintenance of the IT tools available to inspectors (modules of ECHA Interact Portal for National Enforcement Authorities). [2021, 2022]

  • Prepare a guide for enforcement focusing on imported substances and articles in cooperation with customs authorities. [2021]

  • Start with the volunteering Member States the implementation phase of the annual reporting of national enforcement activities to ECHA. [2022] [REACH Review Action 13]

Enforcement for poison centres from 2022

The Forum intends to initiate a project of enforcement in 2022 on poison centres. The project will check that companies have complied with their duty to notify hazardous mixtures (for health and physical effects) to the Poison Centre Notification portal.

ECHA reminds us that:

“Companies must provide information about the mixtures to relevant national bodies. This information is then made available to poison centres so they can give advice to citizens or medical personnel in the event of a poisoning.

“The obligation to notify certain hazardous mixtures placed on the market for consumer and professional use applies from 1 January 2021. The Forum will start preparing its pilot project in 2021 and plans to carry out inspections from the second half of 2022 until mid-2023. The project report is expected in early 2024.”

Enforcement focus in 2023 — safety data sheets

At the most recent Enforcement Forum meeting, it was agreed that safety data sheets (SDS) would be the main focus for 2023. The intention is to look at the quality of the information contained within the SDSs, as well as ensuring the compliance with the revised REACH Annex II requirements. Inspections will be carried out in 2023 with a report expected in 2024.

The European Chemical Agency states that:

“Safety data sheets are the main vehicles for communicating safety information in the supply chain. If they are deficient, workers and professionals may not receive adequate information to use hazardous substances and mixtures safely.

“The poor quality of information in safety data sheets is a long-standing issue detected also in many earlier enforcement projects — up to 52 % were found to be deficient in the Forum’s REF-2 project in 2013. Experience from enforcement activities in Member States confirms that the issue persists.”

Conclusions

  • The Forum works hard to ensure that enforcement is fair and chooses projects to focus on.

  • Companies may find that following the activities of the Forum projects as an extra burden on them and another thing to track!

  • However, if companies are complying with the regulations, they have nothing to fear from the projects.

  • In fact, these projects help to create a level-playing field and encourage those who are not complying to do so!