The European Chemicals Agency (ECHA) has been coordinating pan-European enforcement action projects since the early days of EU REACH. The latest enforcement project targeted online sales of both chemicals and articles.
This project encompassed 29 countries in the European Economic Area with respect to REACH, CLP and BPR, plus Switzerland (BPR only). It was found that “most inspected products sold online were non-compliant with at least one requirement under relevant EU chemicals legislation being checked”. Overall non-compliance rates with products/offers on marketplace sites (95%) was much worse than from web shops (65%). This resulted in more than 5,000 enforcement actions – mostly removing products from sale on websites or correcting advertised information.
Over 5,700 products/offers were inspected of which 87% were of substances/mixtures (the majority – 55% – carried out by Germany), and 13% were of articles (of which 33% were conducted by Sweden).
Regarding REACH restrictions, 95% of the substances/mixtures investigated did not comply and 25% of the articles. The main infringements related to uses of cadmium (in plastics and jewelry), certain CMRs including lead (particularly in solder), formaldehyde, boric acid and disodium tetraborate, but also hexavalent chromium (in leather), phthalates in toys, asbestos, methylenediphenyl diisocyanate (MDI), and methanol. As the assessment only involved chemical analysis in some cases it was thought that the level of non-compliance in articles was likely to be higher.
The most major area of non-compliance was in regard to CMRs being offered for supply to the general public where 99% of these should only have been offered for supply to professional users. Regarding biocidal products, 42% of the products identified were judged as not being authorized to be placed on the market.
A rare and encouraging finding was that only 5% of Safety Data Sheets (SDSs) were found to be non-compliant, although this was only in regard to the supply/availability of SDSs in an official language of the country concerned. For a further 15% of chemicals assessed, it was not possible to reach a conclusion, or the status was unknown. Hence the project did not consider the quality of data in SDSs.
Note that in many countries products/offers considered to present a high risk of non-compliance were specifically selected for assessment. This risk-based approach is consistent with methodologies used in other areas of market surveillance, but the details of these approaches was not explained. In broad terms, however, this would have the effect of returning a worst-case picture.
Key recommendations arising from the enforcement project’s final report are that:
- The European Commission should “make marketplaces responsible and liable for enforcement of illegal products/offers especially from sellers outside the EU”.
The wording here is perhaps confusing as “enforcement”, if defined as market surveillance, is a national responsibility. However, it is clear that the expectation is that online marketplaces should take a greater proactive responsibility to ensure that their sellers provide adequate evidence of compliance versus their legal requirements – and that this should occur before items are made available online.
- The European Commission should clarify, harmonize and strengthen regulation of online commerce in the EU.
It is worth noting here that REACH, CLP and BPR as Union harmonization legislation are subject to the EU Market Surveillance and Compliance of Products Regulation, (EU) 2019/1020. This Regulation introduces the term “fulfilment service providers” and classifies them as economic operators. As such fulfilment service providers have obligations which it is to be hoped would be captured in this recommended work.
- Marketplaces to be encouraged to join the European Commission Product Safety pledge
and be more proactive and transparent about their sellers. This should include a focus on restricted substances and “random laboratory tests”.
It is unclear why random testing is recommended here, as a properly designed risk-based methodology for sample selection and appropriate testing would apparently be a more useful means of providing some level of assurance of compliance by sellers.
- Industry/trade associations should raise awareness about the above regulations including the development of common best practice guidance, and ensuring compliance officers are properly conversant with requirements. A particular focus on substances intended only for professional use is needed. (One approach suggested is to place products not intended for the general public on a subpage of a site which would only be reached once some company-related information has been requested).
Further enforcement action is also recommended.
This project highlights that the quality of data being provided to accompany online sales is often poor and this presents particular risks to non-professional buyers of products in terms of exposure as hazard information was frequently deficient.
For industry procurers, there is still considerable uncertainty over the quality of SDSs – which presents a risk when carrying out assessments to ensure safe use. The high levels of non-compliance regarding REACH restrictions emphasizes a need for both rigorous assessment of product data and risk-based deployment of chemical testing as a matter of routine.
Want access to more insights and analysis from our expert Knowledge Partner Network? Sign up to our newsletter!