Overview of consumer tools and approaches
NGOs and public authorities have developed several tools to reduce the information search costs for consumers making right-to-know requests. Two approaches have been adopted: (1) help consumers file a request and (2) collect suppliers’ responses in a database to make them available to other consumers and the public. As for the first approach, many actors offer(ed) sample letters in which consumers insert article details and personal contact data that can then be sent via mail or email.Footnote 9 In 2012, the German Environment Agency (UBA) and the NGO “Friends of the Earth Germany” (BUND) released an online inquiry tool. Here, consumers had to fill in only the name of the article as well as its GTIN. The tool automatically sent the request to the owner of the GTIN.Footnote 10 The next development step in this approach was introduced in 2017, when UBA launched the smartphone application “Scan4Chem”.Footnote 11 Consumers using this application first generated their personal profile by providing contact data. Subsequently, they could send right-to-know requests by scanning the barcode attached to an article. With this tool, sending requests from the point of sale became more convenient. However, the initial version of Scan4Chem and the other online inquiry tools did not help overcome the central limitation of Art. 33(2) REACH, i.e. the response time frame of 45 days and lack of a public database with information on SVHCs in articles. Three other smartphone apps combine the approach of Scan4Chem with a database which stores suppliers’ responses: (1) The app “Tjek Kemien” was launched in 2014 by the Danish Environmental Protection Agency and the NGO “Danish Consumer Council” (Forbrugerrådet Tænk);Footnote 12 (2) The right-to-know was added to the scope of “ToxFox” in 2016 (see below), (3) UBA, BUND, the Danish Environmental Protection Agency and the Danish Consumer Council collaborated with additional agencies, NGOs and research organisations in the “LIFE AskREACH” projectFootnote 13 to develop an application similar to “Tjek Kemien” and “ToxFox”, which was launched in 2019 in several European countriesFootnote 14 under different names.Footnote 15
The possibility to send Art. 33(2) requests via the BUND application ToxFox was first introduced on 20 October 2016. However, ToxFox was officially launched in 2013. Until its update in October 2016, ToxFox users could only retrieve information on (potentially) endocrine disrupting chemicals (EDCs) contained in cosmetic products.Footnote 16 Therefore, when interpreting the results of our empirical analysis, it should be taken into account that the application already had active users when the possibility to make SVHC requests was introduced. All previous functionalities for EDCs in cosmetic products are still available. Unfortunately, we have no data on the use of the EDC function for the time period covered by the data set used in our empirical analysis. Hence, we cannot compare the use of the EDC versus the SVHC function.
Regarding the SVHC function, after scanning the barcode of an article, the application shows its name and picture. If SVHC information for a requested article is available, the application lists the name of the substance(s) or informs the user that the article does not include SVHCs (above the legal threshold) according to the supplier. If the requested data is unavailable, users can send an automated request with a single click. Users can view their requests and monitor whether firms answer within the 45 day deadline set by REACH. Users who have not received an answer within the deadline can tick a “notify the supplier” box to resend the request. The section “Article search and history” lists previous articles looked at by the user in a certain period and allows the search of articles using a text entry box. Hence, users do not need physical access to an article at home or in retail to send requests.Footnote 17 BUND not only provides the smartphone application for consumers, but also a browser-based front end for article suppliers.Footnote 18 Instead of responding to REACH requests via email, suppliers can answer pending requests via the front end. They can also pro-actively provide data for articles which have no pending requests. Entries may even refer to entire GTIN ranges.Footnote 19 Moreover, registered suppliers receive email reminders every six months when the candidate list is updated. Once information on an article is entered, it is communicated automatically to users with pending requests. If suppliers do not use the front-end but respond directly to the email request, both BUND and the user will receive the email response and BUND will manually add adequate SVHC information to the database.
Adequacy of GTIN-based applications as a communication tool for Art. 33(2)
GTINs are an imperfect tool for identifying individual articles. First, suppliers sometimes assign the same GTIN to whole groups of articles, e.g. as in the case of fast changing collections [18]. Second and more importantly, specimens of the same article may originate from different production batches. For each batch, there can be different actors and process steps in the supply chain. This, in turn, may result in differing chemical compositions of articles, which may or may not trigger the Art. 33 REACH information obligations. However, the “GTIN Management Standard” states that only changes to the article formulation that affect the legally-required declarable information on the packaging of an article require a new GTIN.Footnote 20 According to feedback from industry representatives during a workshop on the application, it is therefore not common practice to assign an individual GTIN to each production batch.Footnote 21 Linking communication via the application to additional article identifiers (e.g. batch number) could thus constitute a possible solution.
Moreover, barcode owners, to whom requests are addressed, may be located outside the geographic jurisdiction of REACH, i.e. outside the European Economic Area (EEA) and, hence, lack incentives to provide the requested data. Due to the high share of imported articles on the EU market, this is highly relevant. According to Eurostat, in 2015, about 56 % of articles sold within the EU market have been imported into the EU-28 from third countries. A high share of these articles are assumed “articles” in terms of REACH [19].Footnote 22
Furthermore, there are some (alleged) legal uncertainties with respect to the role of BUND in the communication between consumers and firms. First, the BUND sends requests on behalf of consumers. [20] argues that recipients of requests sent via the application are not provided with an actual “procuration” and, thus, could suspend the request until such a document is received. One simple solution would be to add a tick box to the tool, allowing consumers to explicitly declare that they confer a mandate to BUND. This procuration could be attached to requests automatically. Alternatively, BUND could link every request on behalf of a consumer with a “twin-request” in their own right. All sorts of end-users of articles, including legal persons such as NGOs, are, as shown by the legal arguments in the next section, entitled to send requests under Art. 33(2).
Limitations of Art. 33(2)
Design flaws in the REACH regulation and alleged legal uncertainties
The legal framework creates some uncertainties and obstacles to the optimal use of applications. These barriers affect consumers either directly, or indirectly through firms.
The information right is not particularly consumer-friendly. If firms take full advantage of the legal time limit of 45 days, consumers may be discouraged from sending requests. Besides, according to Art. 33(2), firms are not obliged to answer if the requested article does not contain SVHCs above the legal threshold. This leads to uncertainties as to the conclusion that can be drawn from the absence of a response, as firms may or may not comply with their information obligations.
There are also a number of alleged legal uncertainties for firms. First, for firms to be able to inform consumers, information on substances needs to be communicated in the article supply chains. In this respect, REACH complements the “right to know” with a similar obligation stipulated by Art. 33(1): Within the professional supply chain, suppliers of articles that contain SVHCs above 0.1 wt% have to actively provide the recipient of the article “with sufficient information, available to the supplier, to allow safe use of the article including, as a minimum, the name of that substance”. In the REACH architecture, the processes steered by Art. 33(1) shall thus build the knowledge base necessary for a proper working of Art. 33(2). However, according to ECHA, “[t]here are clear indications that the information on substances is not adequately communicated in the article supply chains” [21, 22]. Hence, firms often do not know the SVHC contents of their articles [23]. The lack of supply chain communication affects brands’ and retailers’ ability to answer consumer requests. This raises the question of who is responsible if brands or retailers do not receive (any) SVHC information from their suppliers. Art. 33(1) does not oblige the recipients explicitly to actively request this information or to investigate this issue, in case no or only doubtful information was provided by their suppliers. However, article recipients such as brands and retailers remain fully responsible for the legal conformity of the articles they place on the market. Art. 33 REACH thus strongly encourages suppliers of articles to build up organisational capacities which allow them to determine whether their articles or components thereof contain SVHCs above 0.1 wt%. In fact, keeping the legal principle of proportionality in mind, the European Court of Justice (CJEU) ruled that this requirement “which is minimal in nature, cannot be regarded as being an excessive burden”.Footnote 23 A strategy of relying on supplier compliance would thus put professional recipients at risk [24]. This interpretation is in line with the explicit duties laid down in Art. 36 REACH which does not only contain the “obligation to keep information”, as indicated by the title of the provision; rather, as a logical first step each “distributor shall assemble [\(\dots\)] all the information he requires to carry out his duties under this Regulation”. The provision thus formulates the general “duty to organise” which is ultimately embedded in the principle of self-responsibility of commercial actors as laid down in Sentence 1 of Art. 1(3) REACH. Thus, REACH actors have to actively organise the information, communication and cooperation (IC&C) processes in the supply chain on which the functioning of the various REACH mechanisms is based upon.
Second, Art. 33 REACH does not specify whether the 0.1 wt% value in case of articles that are complex objects (e.g. car, mobile phone, shoe) refers to the whole article or to each article it is composed of. Member states had enforced differing interpretations of the provision [25] until the CJEU decided in favour of the “once an article always an article” approach:Footnote 24 The 0.1 wt% threshold applies to articles which were joined or assembled together to form a more complex object [26]. It also applies to the complex object itself if, e.g., this complex object is an assembly of two articles merged with adhesives that contain SVHCs above the threshold [26]. In addition, the packaging used for transport and presentation of an article is considered a separate article under REACH and is therefore separately subject to all article related provisions.
Third, as for the temporal scope of Art. 33(2), authorities most likely will not enforce information requests addressed at articles that have been placed on the market before REACH entered into force on 1st June 2007. For articles placed on the market thereafter, actors in the supply chains should have developed communication systems to ensure the flow of SVHC information. At least for articles placed on the market after 28th October 2008, when ECHA first published the candidate list, suppliers are obliged to communicate information on candidate list substances pursuant to Art. 33 REACH. More precisely, the communication duties are determined by the candidate list in effect at the time of request and not at market placement. Hence, as the list evolves, so do the communication duties of article suppliers. Contrary interpretations by authorities are not grounded in the legal text.
Fourth, Art.33(2) REACH does not give clear instructions on the kind of information that needs to be provided to a consumer upon a right-to-know request. However, for suppliers to ensure compliance, the response must, as a minimum (1) refer to the individual article in question, i.e. taking into account the specific production batch, (2) refer to SVHCs according to REACH, (3) declare the names of all SVHCs above 0.1 wt% contained in the complex article or its components which remain articles (and/or in the packaging), and (4) refer to the candidate list status as of the date of the request.
Fifth, Art. 33(2) confers the right-to-know to consumers. However, REACH does not provide an explicit definition of “consumer”. The question thus arises whether in addition to natural persons (i.e. “private” consumers), legal persons (e.g. NGOs) are also entitled. In this respect, one may refer, on the one hand, to the communication requirement under Art. 33(1) directed towards the “recipient of an article” which, according to Art. 3(35), refers to “an industrial or professional user, or a distributor, being supplied with an article but does not include consumers.” The definition, however, has to be understood in a way that it covers those actors who use the article in their professional domain similar to how a “downstream user” uses a substance or a mixture, e.g. during a production process. This understanding, on the other hand, does not mean that a company may not be in the position of a consumer in the sense of Art. 33(2), e.g. for their office supplies. The same holds true for other organisations, such as public authorities, schools, universities as well as NGOs purchasing articles used similarly for non-commercial (private) use. Consequently, all sorts of end-users of articles are entitled to file requests under Art. 33(2). Only industrial or professional actors using the article as an input stream within their production process as such or distributors in the supply chain are excluded, and so are persons who make a request without purchasing purpose, like scientists who want to make a study on SVHC requests [18].
Quantity and quality of suppliers’ answers
Findings from Art. 33(2) compliance projects run by law enforcement, indicate that many firms do not reply to requests even if requested articles contain SVHCs above the legal threshold. Moreover, these projects showed that firms falsely state that their articles do not contain SVHCs in relevant quantities, as confirmed by chemical testing. In a pilot project of 15 Member States on the harmonised enforcement of substances in articles, 682 articles were inspected [23].Footnote 25 Out of these, 55 articles contained SVHCs above 0.1 wt%. For these 55 articles, the information obligation was fulfilled in 24 cases and not fulfilled in 31 cases (56%). With regard to firms, 43 firms were obliged to answer, of which 21 companies complied with this obligation and 22 companies (51%) did not. The lack of compliance indicates a lack of proper enforcement of the provision.
However, it is not possible to draw general conclusions on the situation of articles on the EU markets from these figures, as the pilot project focused on high risk articles or materials and targeted only a few SVHCs. Market surveillance for several reasons (including challenges of chemical analysis) usually focuses on a small fraction of SVHCs.