Do we really want EU chemicals policy to follow Boris Johnson’s lead?

At first sight there’s not a lot of similarity between Brexit and EU chemicals policy I grant you. But bear with me. Last week I was lucky enough to moderate a discussion with industry, academia and NGOs on the concept of essential use and I left it wondering whether we are about to do with EU chemicals policy as the UK did with Brexit.

On Brexit I don’t think anyone disagreed that sovereignty, independence and making your mark on the world are admirable things to aspire to. And well, the UK pretty much had all of them already, alongside some pretty considerable if disperse and often intangible benefits from EU membership. But for those who pushed Brexit, it became an ideology of absolutes, black and whites so to speak. When practical questions were raised those posing them were dismissed as naysayers. Those who pointed out the UK was in fact already sovereign, independent and opted out a lot were encouraged to be creative and grasp the opportunities Brexit would afford – even if the benefits weren’t guaranteed and the practicalities seemed rather complex with lots of identifiable downsides.

From the discussions I heard last week it seems that when it comes to essential use of chemicals the same rules may well apply. For those not familiar, the concept of essential use has been around since the Montreal Protocol on Ozone Depleting Substances. Basically you ban things that are harmful, in that case things like HCFCs released into the atmosphere, unless it can be shown that they are essential for environment, health or critical to the functioning of society. More recently, some quite thoughtful people suggested the concept could be applied to a group of substances called PFAS as a means to more efficiently manage risks from 1000s of substances, do it quicker than the current regime allows and prevent a move from one PFAS substance to another, something that has been known to happen on other chemical families only to find they too cause similar harm. Yet the more this group of people dug, the more complexity they found. Lots of shades of grey everywhere. OK, for cosmetics PFAS may not be that essential. For water repellency in surgical gowns in times of COVID, perhaps more so. Those who crafted the PFAS approach seem slightly perplexed that it has so quickly been taken up as a model for all chemicals given this. In my Brexit parallel it’s almost like the opt-outs for certain parts of EU law, good as they may have been, are now being used to make the case for an opt-out generally to the astonishment of those who argued for opt-outs.

Despite this, the idea of introducing the essential use concept has now been taken up by the Commission as a means to move towards a non-toxic environment for all chemicals with hazardous properties. Some argue it’s a simple way to remove all hazardous substances from the market, unless they are of course needed for environment, health or are critical to the functioning of the environment. But the simplicity, like Brexit, kind of ends there. And it starts to get messy. Complex in the way all policy is that deals with the real world normally is.

For a start there’s the ‘philosophical’ and highly political question of what uses of chemicals are deemed to be essential by the European Union. For some, it’s easy. There are certain consumer goods that are just simply not essential. For example, toys, cosmetics, luxury goods, leisure items, and decorative items. Essentiality is about basic needs, end of. Hazardous chemicals should not be allowed in such things. Full stop. It’s just not justifiable. For a second set of goods, hygiene, personal care, childcare, furniture, clothes, hazardous chemicals are also not acceptable under any circumstances. Essentiality may save the use of a hazardous substance in a battery for electric vehicles as it helps fight climate change, but it won’t save the use of one in any one of the consumer goods above.

Sounds good you say. After all, which consumer when asked if they want a hazardous chemical in their kids’ toys or in their luxury goods is going to say yes please! But then you think for a moment and two things occur. One, given we have world beating chemical legislation, the likelihood is that the hazardous substance contained in your consumer article is not posing a risk. In the US they litigate, here we regulate. If there was a risk the likelihood is we would ban it under current rules. We’re quite good at banning things, even when the risks are not lion-eating-you large. Two, branded goods companies are pretty quick to get rid of chemicals that are labelled as cancer causing or gender bending for fear of their brand being damaged. They are probably quicker than regulators. After all, they don’t wish to kill their consumers – who would buy their product? - or tarnish the value of said brands - which is all they have as companies. Which leads me to a concern, how do we account for well-being in this concept of essentiality? After all, my biggest learning from COVID is that there are a bunch of things relating to personal wellbeing and convenience that are rather essential to who we all are as human beings in the 21st century. They all go beyond basic needs. From my perspective life in this non-hazardous world would appear to be long, but very very dull, inconvenient and thus rather unhappy. Is this really what we want as Europeans? 

Then there’s the practical examples that are the equivalent of what do we do about the northern Irish border or phyto-sanitary standards. Here’s just two examples I heard last week. If we take a purist approach to essential use, what do we do about cutlery? You know, like knives and forks. They are made of stainless steel. Stainless steel is an alloy that contains nickel, a hazardous inorganic chemical that you get out of the ground. It would seem that cutlery is non-essential. You’re not of course exposed to nickel when you eat, it’s in the alloy and can’t get out. Equally, even if cutlery were deemed essential (we have to eat), there are plenty of alternatives. Your hands for example. Or perhaps wooden or plastic cutlery at a push. And how about that wedding band you are wearing on your left hand? Jewelry sounds like a luxury good, or at least decorative. Yet if silver is classified as hazardous – currently under discussion in Helsinki – that gold ring, never mind the silver around your neck, would not pass muster. In neither case is there any risk as far as I understand as they are in the alloy and you are not exposed to anything that could threaten your health. And on the environment? Well, you dig this stuff out of the ground. It is the environment. All I can say is I look forward to Mr. Timmermans or his successor explaining how we’ve just banned silver jewelry and stainless steel knives and forks to Europeans. And that’s before we get to things like toys or indeed leisure goods (iPad?) that contain electronics with hazardous substances in them in their inaccessible parts… And managing all of this complexity is likely to distract us from managing risks from hazardous substances where there is actually exposure and the potential for an unacceptable risk to human health or the environment. 

Of course industry is asked to be more creative, solutions oriented and well, believe more. The solution will be found. Can’t you find another metal or fiddle around with the alloy somehow the question comes? Irrespective of whether there’s any exposure, it’s hazardous, the consumer good is not essential and the substances must be banned. I have to say I’m impressed by industry’s willingness to engage in the debate. But I’m just unsure how you change an element or find metals in the ground that don’t currently exist. However, it seems that industry scientists see benefit in enhancing their understanding of the uses of their products. Like me, they are also Europeans too and don’t want to kill their children or pollute the environment more than the next person. And so, I guess it still comes down to a debate already lost – a little like Brexit – there are those who say we need to manage risks based on exposure. Essential uses approaches like in the case of PFAS may help speed that up, even if it adds new levels of complexity. But there’s probably as many chemicals where it makes no sense as an approach if applied at the beginning of risk management processes rather than the end. On the other side there are those who wish to just get rid of hazardous chemicals even if they don’t pose a risk through the use of essential use concepts as cut of criteria for consumer goods. It gets them to their goal quicker, damn what it says about wellbeing and damn the impracticalities or side effects. 

It all sounds too familiar. An engagement in a debate where the direction can’t be questioned and if you do you become a naysayer. That kind of thinking hasn’t worked so well for the UK on Brexit, let’s hope EU chemicals policy takes a different turn.