Is it a bird? Is it a plane? No, it's the EU's chemicals legislation

It has been said, admittedly by me, that the REACH Regulation (EU chemicals law) is a lot like the Airbus A-380. The first time you saw it you stood in amazement at the sheer size of the thing and thought to yourself that there’s no way on God’s earth that it was going to fly. It’s all too big. It’s all too complex. But fly it does. And while it doesn’t get there any quicker than the thing it replaced, it just gets more folks there and that may be enough to justify the rather exorbitant ticket price. Yet despite living with the regulation for 5 years, industry is only just coming out to tell us that the final destination is worthy of the tiresome journey.

Recent statements by Commission officials suggest the arrival of the review of REACH (delayed from 0612) is approaching its final decent. It’s expected to cover everything from registration requirements of polymers to a report on the functioning of ECHA. And while we’re all still waiting in the arrivals hall, Guido Sacconi, the wily old EP rapporteur from ENVI Committee, has already taken to praising his creation in a recent European Chemicals Agency newsletter article. Perhaps more surprisingly for some the chemical company even ran a love-in of an event complete with Commission and NGO actors here in Brussels to talk about the success of the Regulation. A recent luncheon with a friend of mine, who was involved in the legislative process within the institutions, touched upon the subject of the event. My lunch companion used it as evidence that DG ENVI was right all along. I would suggest her surprise at BASF’s public position is an example of how wrong the chemicals industry has been all along in its positioning on REACH post-adoption.

Don’t get me wrong. There’s a lot that’s wrong with REACH. Its ambition, scope and complexity have consumed huge resources of industry that could be better spent doing more productive things than regulatory compliance. The regulatory certainty that companies need to invest has been undermined on a number of fronts. There’s some pretty subjective criteria (article 57f anyone?) in the existing regulation. The legislator has continued to seek to address chemicals in other legislation, often without due regard to how it fits together with REACH. A concerted campaign is underway to undermine the confidence of all in REACH’s ability to deliver a high level of consumer and environmental protection by highlighting new areas of concern from endocrine disruption to combined effects and chemicals at the nano-scale. From this (Belgian) taxpayer’s point of view, I do wonder how I feel about my Euro being used to examine substances under REACH evaluation, restrictions and authorisation that have already been subject to numerous reviews by EU regulators (I noted for one substance I used to work on that the REACH authorisation process would have been its fifth EU level review of recent years). I also wonder whether we would be served better if they looked at substances for which we didn’t have lots of data and prior regulatory assessments. But then again such substances are not in that ‘political’ class of chemicals that gets media attention and European Parliamentary questions.

But I digress. REACH was needed and somewhat deserved. Any industry that plays defence, can’t explain its products and doesn’t communicate its own value to society is going to get regulated (heavily) eventually. Whether you’re the chemicals industry or the financial services sector, the same rule applies. But more importantly, I think the chemicals industry is missing an opportunity now REACH has been adopted to reset the reputational clock. The world’s largest piece of chemicals legislation offers an opportunity to start afresh with the support of all stakeholders who, with the possible exception of certain NGOs, have a vested interest in the law being seen to work. It’s sad, but something tells me that if the Commission were to make a legislative proposal to amend the text today the end result would be worse rather than better. It’s sad, because I know how many good people, how much money and how much time has been spent making this big bird fly. Paradoxically it would appear that the industry has spent so much time trying to make REACH work, it is forgetting to communicate it to the folks that matter (as underlined by a piece of work we did for CEFIC last year on the industry’s reputation in town).

As such, BASF should be praised for taking the lead in communicating with passion to those that matter how successful REACH has been. If only the industry as a whole would expend a fraction of the effort they’ve spent on complying with REACH communicating about it. Then maybe we’d could start appreciating the benefits chemicals and the chemicals industry bring to our lives. Before industry does so in a concerted manner, all the regulatory compliance in the world will not overcome continued concerns about its products’ safety, or frankly concerns about the industry’s integrity overall. And the industry will continue to face ongoing regulatory threats.