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.
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.