The EU’s ‘Restriction Roadmap’: the largest ever ban on toxic chemicals
The European Commission (EC) has now published its new framework for monitoring and regulating hazardous chemicals. Part of the ‘Chemicals Strategy for Sustainability’ - a key aspect of the European Union’s (EU) zero pollution ambition - this extensive ‘Restrictions Roadmap’ aims to protect the environment and human health by outlawing groups of toxic substances. This has been hailed as the biggest ban ever of toxic chemicals, with approximately 12,000 substances falling within the scope of the new Restrictions Roadmap.
In the EU, the importation and manufacture of chemical substances is governed by Regulation (EC) No. 1907/2006 (the REACH Regulation). Enforced in Member States since July 2007, it provides for the registration, evaluation, authorisation and restriction of substances. It is the world’s most extensive chemical register.
Under Article 68(1) REACH Regulation, chemicals that ‘pose an unacceptable risk to human health or the environment’ can be restricted if companies cannot satisfy the burden of proof by demonstrating their safety. As of October 2021, some 200 substances were subject to restriction under REACH.
While regulation helps shield consumers from some harmful substances, World Health Organisation (“WHO”) figures still suggest pollutants cause two million deaths per year.  Not only are they linked to cancers, hormonal disruption, reprotoxic disorders and diabetes in humans, but species such as killer whales are facing the extinction of half their global population due to concentrations of a toxic chemical, PCB, at 100 times the recommended safe level.  Scientists now advise that the ‘planetary threshold’ for chemical pollution has been crossed, and predict that without regulatory reform toxic substances have the capacity to cause global ecosystems to collapse.
Published in April 2022, the Restrictions Roadmap is aimed at ‘maximizing the reduction of unacceptable chemical risks’ by using ‘broader restrictions’, ‘grouping of substances’ and addressing a ‘wider range of issues’. The Restrictions Roadmap is the latest instalment of the Chemicals Strategy and part of the EU’s response to this chemical pollution challenge.
Scheduled to begin in the next two years, the Restrictions Roadmap will use the provisions contained in the REACH Regulation to harmonise chemical risk management and work towards the zero-pollution target of the European Green Deal. This will be achieved through several novel features:
Restricting groups of substances
For the first time, the EC is targeting entire chemical groups. This marks a significant departure from previous policy, and a focus on ensuring regulation keeps up with the pace of industry developments.
By prohibiting the use of groups of chemicals, the European Chemicals Agency (ECA) seeks to phase out ‘regrettable substitution’, a method which effectively neutralises regulatory efforts. This is a ‘cynical and irresponsible tactic’, Tatiana Santos, Chemical Policy Manager of the European Environmental Bureau (EEB) explains, ‘to replace the most harmful banned chemicals with similarly harmful ones not yet on the regulatory radar’.  With a new industrial chemical created, on average, every 1.4 seconds, this broader-brush group-based approach has the potential to mitigate any efforts to avoid regulatory enforcement.
Using a flexible ‘Rolling List’
By 2030, the EEB estimates that an additional 5,000 – 7,000 chemicals will be restricted. This will be a consequence of the ‘Rolling List’ of restrictions, designed by the EC and composed of three ‘pools’. In these pools, substances are divided according to their relative danger and the stage of any restriction measures that have already been proposed.
As more information is gathered by the EC, ECHA and Member States, the existing pools will shift, and the Rolling List will be regularly updated. This will continue until 2027, when the research will be consolidated in formal revisions to the REACH Regulation.
Position in the UK
While the UK lies beyond the framework of EU chemical regulation, its key principles were retained in the post-Brexit UK REACH Regulation. In force since 31 December 2020 and governed by the UK Health and Safety Executive, non-compliance with this Regulation can lead to a fine or imprisonment.
In the UK, however, there has been little insight into potential reform. While some reports have suggested there may be regulatory divergence with the EU framework, stakeholders will need to await the outcome of Defra’s statutory review of the UK REACH Regulation to discover whether the EC’s lead will be followed.
Described by European policy leaders as the ‘boldest detox we have ever seen’,  the Restrictions Roadmap represents the start of more forceful restrictive intervention in the chemical industry. For consumers, and indeed the general population, the most obvious benefit is safety. Many chemicals listed as hazardous on the Rolling List currently have widespread uses in society, including flame retardants, bisphenols, PVC plastics and PFAs. So-called ‘forever chemicals’, PFAs are present in products as diverse as single-use nappies, make-up, food packaging and children’s playground surfaces. For companies that manufacture or use chemicals, the impacts could be wide-reaching: trade bodies predict the new restrictions could reduce the industry’s annual turnover by over 25%.  To stay ahead of regulatory change, companies need to closely monitor the Rolling List and adapt their supply chains and end products accordingly to avoid fines, prosecution or civil claims.
For all stakeholders and potential litigants, the tentative timelines included in the Rolling List can be a particularly useful resource. As the EC, ECHA and Member States start to investigate chemical groups, the predicted dates for the submissions of any restriction dossiers will be publicly recorded. These can provide valuable insight into future regulation and time to make necessary adjustments before these chemicals become subject to restriction. As more toxic substances do become restricted, we foresee a likely increase in claims arising in product liability or environmental law.
With special thanks to co-author Eleanor Dodd.