ECHA on the enforceability of the proposed PFAS restriction

ECHA on the enforceability of the proposed PFAS restriction

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ECHA on the enforceability of the proposed PFAS restrictionThe European Chemicals Agency (ECHA) announced earlier this month that its Enforcement Forum has published recommendations on the enforceability of the proposed restriction on per- and polyfluoroalkyl substances (PFAS). Prepared by the five national authorities of Germany, Denmark, the Netherlands, Norway and Sweden. The opinion sets out a number of issues that EU enforcement authorities may face. Unless the legislator ensures that the final draft law adopting the restriction takes into account the issues raised.

Manufacturers of various items in Hong Kong may recall that the restriction published on February 7, 2023 serves several purposes. These purposes concern a ban on the production, marketing and use of PFAS as a pure substance. As well as the placing on the market of PFAS in another substance (as a component), in a mixture and in an article. The latter concerns a concentration above certain limits. It is proposed to restrict the production, use and placing on the market from 18 months after the restriction comes into force following its adoption. Provided there is no derogation.


Forever Chemicals

PFAS are substances known as “forever chemicals”. They are intended to be used in everyday consumer products to make them water, stain or heat resistant. Due to their effectiveness, PFAS are said to be used in numerous industries and in products such as stain repellents, carpets and shoes. They are used by textile manufacturers to impregnate clothing and are used in floor polish, non-stick cookware, food packaging, cosmetics, firefighting foam and various other types of consumer products.



The Enforcement Forum’s advisory report points out that PFAS have been incorporated into a wide variety of products and product parts due to their wide range of functions. This poses legal problems when assessing the concentration limits of PFAS in a product. The Forum also points out that many deviations have been proposed. The Forum urges legislators to make the legal text as clear as possible to avoid unnecessary problems that enforcement authorities may face.


Even more obstacless

Because the PFAS mitigation proposal is so broad, covering many articles and many chemicals, it is difficult to say what specific sampling and preparation methods are required or if they are even available. Adding to this difficulty is the limited number of laboratories that have the equipment to perform analysis and accreditation for the process.


Some practical points

The Forum highlights major challenges in a number of practical areas:

  • Achieving harmonized enforcement of the proposed restriction will require a significant amount of manpower, as well as well-equipped laboratories and potential new and substantial guidance from official bodies.
  • The limited number of laboratories with the equipment to carry out all the necessary analyses could be an enforcement bottleneck;
  • Even the initial question “PFAS or non-PFAS?” requires expertise and therefore additional new tools are needed for national enforcement authorities on the ground;
  • Sampling, analysis and interpretation of results may require, among other things, additional expert support and resources;
  • The large number of proposed exemptions as well as the large number of substances and material types imply that national enforcement authorities will require extensive investigations by inspectors.

In short, enforcing the proposed restriction will require more time and resources than are normally available to the authorities.


The actual enforceabilitys

In the Forum’s view, actual enforceability is therefore difficult. Significant improvements are considered necessary in the availability of standardized analytical methods and the provision of additional guidance. National enforcement authorities require additional expertise, for example due to the proposed exemptions for certain applications in many industries. In addition, the analytical methods of the monitoring programs are inadequate in many cases.


Reformulation or redefinitions

It is also believed that certain parts of the proposed restriction may need to be reworded or redefined to make it more enforceable. For example, under the current proposal text, the specific information requirements only apply to manufacturers, importers and downstream users. Not for distributors!


Additional advices

PFAS are already regulated in various other pieces of legislation (POP Regulation, F-Gas Regulation, CFC Regulation). According to the MOB, this will make enforcement more difficult. Additional advice is therefore sought on the interaction of the restriction with the obligations under the various regulations mentioned above (relating to POPs, F-gases and CFCs).


Scource: HKTDC Research
Also Read: Every third biocide tested proves to be non-compliant

This information has been compiled with the greatest possible care, in some cases from different information sources. (Interpretation) errors are not excluded. No legal obligation can therefore be derived from this text. Everyone dealing with this subject has the responsibility to delve into the matter!