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Manufacturers have long struggled with navigating the separate legislation that has grown up around products, waste and chemicals. We are regularly asked exactly which products are covered by which bits of the EU’s main chemicals regime REACH, when something is and isn’t a waste and how chemicals restrictions differ between products and wastes.


But this is more than just a compliance headache. The list of ‘substances of very high concern’ (SVHCs) under REACH is growing, meaning waste for recycling may now contain substances viewed as problematic in new products. These have to be logged and potentially stopped from re-entering the market.


Concern about the impact this is having on markets for secondary materials and wider circular economy goals has also been growing among policymakers. The European Commission this week launched a welcome consultation on the interface between legislation on chemicals, products and waste. However, this is only an initial step forward and I think there are a number of practical challenges to overcome, even if the legislative landscape is somehow corrected.


The Commission’s consultation focuses on four main issues it identified earlier in the year as preventing the uptake of secondary raw materials. It’s easier if I take these in turn and think about some of the practical issues arising out of each:


- Lack of information through the supply chain (and particularly for recyclers) about the chemical risks posed by products. This is partially addressed through a last minute (apparently under the radar) amendment to Article 9 of the Waste Framework Directive earlier this year, requiring suppliers to notify the European Chemicals Agency of SVHCs in articles.

Many waste streams are heterogeneous, making them very difficult to track. So I find it difficult to see how the waste sector can make proper use of potentially voluminous and very detailed information on the presence of SVHCs in its products; never mind the practical issues for manufacturers in providing the information in the first place. Also, I’m just not sure the current economics of the waste sector allows this, despite the Commission’s best intentions.


- Balancing circular economy goals against the need to manage legacy substances of concern in some materials through the development of a new decision making methodology.

This relies heavily on the identification of substances in waste products, which I see as the greater issue (see above). My feeling is that although a decision making methodology may go some way to implementing the (much discussed) circular economy, it is not just these regulatory barriers preventing the uptake of recycled materials. Members have told us of many circumstances where their customers demand product quality specifications that simply cannot be met using recycled products.


As an example, despite using large amounts of scrap metal, the steel industry cannot make some automotive grades using scrap metal. Customers demand high technical specifications unachievable using scrap. This is something that cannot be solved simply through regulatory change. In my mind, I’m afraid these practical barriers are far greater than the regulatory issues.

- The lack of consistency in the way end-of-waste criteria are applied in the Union. The Commission believes better harmonisation of the rules would allow for improved consistency and give businesses greater confidence to apply them.


I have a concern this would only lead to increased export by the waste sector, who can take advantage of the end-of-waste rules to access more export markets, particularly where there is no domestic market.


- Lack of harmonisation between chemical and waste regulation. Disharmony between rules on waste and rules on products mean the recovery of a non-hazardous waste into a new product poses many difficulties. A non-hazardous waste does not necessarily become a non-hazardous product, therefore practically preventing its use by manufacturers.

As discussed, whilst this is clearly a significant regulatory barrier I don’t see it as the dominant issue.

The key question in all of this is whether it is more beneficial to reuse and recycle than to take a precautionary approach towards the classification of chemicals in products and waste. Of course, the safety of EU citizens must be a priority but there is a potential risk that an overly precautionary approach could lead to poor decision making on the hazards posed by some products. 


A fundamental shift in thinking is required by the EU that I don’t believe it is prepared for. It is trying to reconcile a precautionary approach against much newer thinking on the circular economy.  On the whole, manufacturers should welcome steps taken by the Commission to deal with some of these issues, but the practical challenges will require a major shift in gear. As we leave the EU, perhaps the UK can take the lead and ensure manufacturers’ fears about accessing raw materials are resolved through a truly circular economy.



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