REACH Revisited, Part 3: Is a Less Restrictive REACH Worth Considering?

This is the third and final article in a short series on REACH’s registration and data-gathering requirement.

In Part 1, we explored REACH and the costly, cumbersome nature of its chemical registration process, which WTO members argued was overly restrictive to international trade. In Part 2, we looked at the chemical regulatory frameworks of Canada and Japan as feasible alternatives. Here we discuss whether a less restrictive option deserves serious consideration.

A Refresher

WTO members criticized REACH’s registration and data-gathering requirement as too cumbersome and too costly. The “cumbersome” argument rests on the fact that the requirement is hazard-based rather than risk-based, which demands a substantial amount of redundant labor from both industry and government. The cost of that redundant labor, combined with other related spending (including, but not limited to, human resources, IT, research, communication, and ECHA fees), has made REACH compliance exorbitantly expensive for stakeholders.

A quick survey of the facts indicates that the requirement is indeed cumbersome and costly, so much so that the overall chemical market has suffered: some companies have decided to cut their losses by partially or fully withdrawing from Europe. On one hand, this is part of the point, since REACH is meant to have a restrictive effect. On the other hand, the members’ argument that the requirement is overly restrictive carries some weight. Does the economic cost outweigh the environmental benefit? And what would the alternatives look like?

Canada’s Chemicals Management Plan (CMP) and Japan’s Chemical Substance Control Law (known as “Kashinho”) are less restrictive alternatives to REACH, at least on paper. Both use a risk-based assessment strategy, which fosters a more stratified approach to resource allocation. Canada’s straightforward system for making up-to-date information readily available through dedicated websites is a considerable bonus: it is not only easier to use, but it also relieves regulators of the work of processing registration information and answering questions from (understandably) confused stakeholders. Part 2 of this series takes a more in-depth look at the CMP and Kashinho.

The question remains: if feasible alternatives exist that are less economically problematic than REACH, why not simply follow suit?

REACH’s Legitimate Purpose

Keep in mind that REACH, like other chemical management programs, was designed with a legitimate purpose. Its “primary stated objective is to ‘ensure a high level of protection’ of health, safety, and the environment through the creation of a single comprehensive system that covers all (existing as well as new) chemical substances.” Legislators designed the regulation to achieve that objective, and the objective was set because there was deemed to be a risk in not pursuing it. In other words, the controversy is whether the registration and data-gathering requirement as it stands is the only option that will keep people and the environment safe, or whether it goes overboard.

Perhaps the requirement is exactly as restrictive as it needs to be to achieve such a lofty goal, making it necessary despite the damage to the market. But consider this analysis from Kogan:

A TBT Article 2.2 analysis of REACH, … indicates…, that REACH’s registration/data-gathering requirement may suffer both from design flaws and implementation irregularities. A number of reports indicate that the operation, implementation, and effects of said provisions have undermined REACH’s ability to contribute to its objective … . [R]eports indicate that REACH’s hazard-based registration/data-gathering, notification, and information-sharing requirements have imposed on global industry a significantly altered cost structure that is more trade restrictive than necessary to achieve REACH’s objective.

As discussed earlier in this series, it was the costly and cumbersome nature of the requirement that pushed certain stakeholders out of the European market. The analysis above suggests that the issue (the “restrictiveness”) lies in the structure of the requirement, not necessarily its content.

Too Early to Call, but Worth Considering

The discussion would benefit from metrics comparing the effectiveness of various chemical management programs over time, which would offer a quantifiable way to justify the means by the end. Unfortunately, it is still too soon to draw any real conclusions.

Even so, it seems fair to say that Canada’s and Japan’s less restrictive alternatives are worth serious consideration. Adopting their risk-based assessment strategy, with its more stratified approach to resource allocation, and combining it with Canada’s straightforward system for making up-to-date information readily available, would make the requirement less costly, less cumbersome, and therefore less restrictive.

In theory, this easing of restrictiveness would still fulfill REACH’s objective of a high level of protection, because the amendments would simply make the process more accessible and efficient rather than eliminating the requirement altogether and going back to square one. That would free government and industry to shift resources away from navigating bureaucratic complication and toward what matters: protecting people and the environment.

Back to Part 2, or see how MatCheck handles REACH compliance today, however it evolves.