Public con­sul­ta­ti­on on PFAS rest­ric­tion closed

More than 5,000 sub­mis­si­ons on the rest­ric­tion pro­po­sal are now being evaluated.

Per- and poly­fluo­ri­na­ted alkyl sub­s­tances (PFAS for short) form a group of more than 10,000 dif­fe­rent indus­tri­al che­mi­cals. PFASs are used in num­e­rous indus­tries, par­ti­cu­lar­ly becau­se of their water- and oil-repellent effect as well as their resis­tance to radia­ti­on and tem­pe­ra­tu­re. Howe­ver, PFAS and their com­pounds are not degra­da­ble and thus bio­ac­cu­mu­la­ti­ve. In addi­ti­on, at least some PFAS are suspec­ted of being car­ci­no­ge­nic and toxic to reproduction. 

Due to the adver­se effects on humans and the envi­ron­ment, the use of indi­vi­du­al PFASs is alre­a­dy hea­vi­ly regu­la­ted throug­hout Euro­pe. The cur­rent rest­ric­tion pro­ce­du­re aims to enforce a ban on the use of almost all PFAS in the EU. The rest­ric­tion pro­po­sal pro­vi­des for only a few, time-limited exemp­ti­ons from the use ban for cer­tain PFAS.

On 25 Sep­tem­ber 2023, the con­sul­ta­ti­on peri­od ended during which eco­no­mic ope­ra­tors and stake­hol­ders could sub­mit their comm­ents on the impact of the rest­ric­tion pro­po­sal to the ECHA. As expec­ted, con­sidera­ble use was made of this pos­si­bi­li­ty – approx. 5,600 comm­ents from 53 count­ries were recei­ved. One of the cri­ti­cisms is that the use of num­e­rous PFAS is rest­ric­ted alt­hough equi­va­lent alter­na­ti­ves or sub­sti­tu­tes are lack­ing. This poses con­sidera­ble risks, espe­ci­al­ly in the medi­cal device and health­ca­re indus­tries. The auto­mo­ti­ve indus­try, on the other hand, fears that the move away from fos­sil fuels – which is also pushed by the EU – will be pre­ven­ted. Some PFASs are irre­placeable in the pro­duc­tion of lithium-ion bat­te­ries and in hydro­gen technologies.

The ECHA Com­mit­tees will eva­lua­te the input from the con­sul­ta­ti­on pha­se and intend to issue opi­ni­ons in 2024. The­se opi­ni­ons will be dis­cus­sed and voted on in the sub­se­quent REACH Regu­la­to­ry Com­mit­tee bet­ween repre­sen­ta­ti­ves of the EU Com­mis­si­on and the EU Mem­ber Sta­tes. Whe­ther and to what ext­ent the comm­ents of the stake­hol­ders will have an impact on the opi­ni­ons of the Com­mit­tees and on the final ver­si­on of the PFAS rest­ric­tion remains to be seen. For the­re are also fears at minis­te­ri­al level that exces­si­ve regu­la­ti­on could curtail the pro­mo­ti­on of inno­va­ti­on in future and key tech­no­lo­gies. At the same time, the PFAS rest­ric­tion could be used by the EU to test the “essen­ti­al use” con­cept inten­ded in the con­text of the revi­si­on of the REACH Regu­la­ti­on and to app­ly a strict stan­dard in deter­mi­ning neces­sa­ry PFAS and their uses. Until a final ver­si­on of the PFAS rest­ric­tion is adopted, which is expec­ted to take place in 2025, a num­ber of fun­da­men­tal ques­ti­ons will still have to be clarified.

Even if the scope and ext­ent of the final PFAS rest­ric­tion can­not yet be esti­ma­ted, the rest­ric­tion pro­po­sal has set the basis for dis­cus­sion to the effect that only the scope and dura­ti­on of excep­tio­nal uses are now likely to be discussed.

Con­clu­si­on

When and to what ext­ent the PFAS ban will be imple­men­ted remains uncer­tain. Nevert­hel­ess, affec­ted eco­no­mic ope­ra­tors should not sim­ply rely on pos­si­ble exemp­ti­ons, but should push for the deve­lo­p­ment of alternatives.