EU Advocate General Kokott has found that the European Commission illegally disregarded the hormone-disrupting risks posed by the phthalate DEHP when it approved its presence in PVC materials and products.
A known endocrine disruptor, DEHP has reported impacts on health and the environment, as it affects fertility, the development of the unborn child and aquatic life. Its presence in recycled materials can lead to workers, consumers and the environment being exposed during the lifecycle of PVC products.
The news is the latest development in a ClientEarth court case. The environmental law charity asked the Commission to review this authorisation in 2016, and challenged its refusal to do so before the General Court of the EU in 2017.
The lawyers argued that this authorisation breached REACH – the main EU chemicals law – on several grounds.
The General Court of the EU rejected ClientEarth’s claims in the first instance, but today, in the latest stage of the case, Advocate General Kokott supported the lawyers on several key arguments.
ClientEarth chemicals lawyer Dr Apolline Roger said: “Leniency with chemicals authorisation in the past is what’s given us the contaminated products we are dealing with today – such as highly dangerous DEHP in recycled PVC. We are absolutely delighted that Advocate General Kokott has opted for an interpretation of the REACH regulation that takes into account the real-life impact of this harmful chemical.
“When authorising the use of DEHP, the Commission intentionally ignored some of its dangers. As a result, it didn’t properly balance the socio-economic benefits and risks of allowing DEHP to be used in recycled products, as required by REACH. We hope that the European Court of Justice will follow the path recommended by Advocate General Kokott and annul the decision of the General Court.”
But ClientEarth’s lawyers have also pointed to broader issues with the use of chemical regulation to manage contaminated recycled material that have not been fully addressed by Advocate General Kokott
Roger said: “The REACH authorisation process was not created to address the undesired presence of legacy contaminants, like DEHP in recycled PVC. It was set up to handle the intentional use of harmful chemicals by companies or their downstream users.
“The REACH authorisation process lacks the tools needed to handle this type of situation: full life-cycle evaluation, comparison of end-of-life solutions, systems to ensure the traceability of recycled materials and products. The mismatch between the tools and the work to do automatically leads to poor decisions.
“But the Advocate General did not reject this inadequate application of REACH. We hope the EU Court might judge differently.
“We need a circular economy that is healthy – not one that allows toxic substances to creep in. We call on the Commission and the Member States to find a better long-term solution than using REACH authorisations to paper over the gaps between chemical and waste regulation, to maintain trust in recycled materials.”
The final verdict of the Court of Justice of the European Union is expected within the year.
Client Earth, 26 February 2021