27 Feb 2019
Ban on Harmful Flame Retardant “DecaBDE”
On 2 March 2019, a prohibition on the use of bis(pentabromophenyl)ether, more commonly referred to as decaBDE, will enter into effect. DecaBDE is a widely known and hazardous flame retardant used in a variety of articles, especially textiles and electronic and electrical equipment (EEE) made of plastic. It is also used in adhesives, sealants, coatings and inks. Given its presence in a wide variety of products, Hong Kong sellers should be alerted to the imminent implementation of this law.
Since the publication of Regulation 2017/227 on 2 February 2017 which sets out the prohibition, a transition period, giving economic operators some time to adjust to the new law, has applied. This transition period expires on 2 March 2019.
Regulation 2017/227 introduced a new Entry, namely Entry 67, into Annex XVII of the REACH Regulation (Regulation 1907/2006) concerning the registration, evaluation, authorisation and restriction of chemicals. Hong Kong suppliers of goods to the EU will be familiar with REACH, which controls the use of thousands of chemical substances and also prohibits several harmful substances commonly used in articles.
Entry 67 provides that decaBDE shall not be manufactured or placed on the market as a substance on its own after 2 March 2019. In addition, the placing on the market of other substances, mixtures or articles containing decaBDE, in a concentration equal to or greater than 0.1% by weight, is also prohibited from 2 March 2019.
The new Entry does, however, lay down a number of exceptions to the prohibition. For instance, articles already placed on the market before 2 March 2019 are exempted entirely.
In addition, EEE falling within the scope of Directive 2011/65/EU on the restriction of the use of certain hazardous substances (RoHS 2) are also exempt from the new restrictions. This is because RoHS 2 already restricts the placing on the market of EEE containing decaBDE, and other polybrominated diphenyl ethers (PBDE), in a concentration above 0.1% by weight.
The new entry further provides that in order to give the aviation industry sufficient time to adapt, the restrictions will not apply to civil or military aircraft until 2 March 2027.
Moreover, there are exemptions for spare parts made for aircraft produced before 2 March 2027, as well as spare parts made for motor vehicles, agricultural and forestry vehicles, and machinery falling within the scope of Directive 2006/42/EC, produced before 2 March 2019.
Given the number of exemptions to what is considered to be a vital restriction curbing the harmful effects of decaBDE, the law has faced heavy criticism from environmental campaigners, especially regarding its deferral periods. DecaBDE is a known endocrine disruptor and a very persistent and very bioaccumulative substance, meaning that it can cause a build-up of dangerous toxins in the environment and humans.
Regarding the Regulation’s origins, on 19 December 2012 decaBDE was included in the Candidate List of Substances of Very High Concern (SVHCs) for possible inclusion in Annex XIV to REACH on authorisation requirements. Annex XIV bans the substances themselves, if listed within it, from being placed on the market or used in the EU, subject to only very limited exceptions. However, further to a proposal from Norway to list decaBDE in Annex A (Elimination) of the Stockholm Convention on Persistent Organic Pollutants (POPs), the Commission began to consider whether making decaBDE subject to Annex XIV requirements was still the most appropriate regulatory measure.
On 28 September 2015, ECHA submitted the opinions of its Risk Assessment Committee (RAC) and its Committee for Socio-Economic Analysis (SEAC) to the European Commission. Both ECHA committees recommended that a general restriction on all uses of decaBDE with some specific exceptions would be the best option to reduce emissions of decaBDE as much as possible in the medium- to long-term.
In response, the Commission developed a proposal to include a new entry in Annex XVII which lays down conditions on restrictions on the manufacture, placing on the market and use of certain dangerous substances, mixtures and articles. After passing through the Member State committee, the Commission adopted the Regulation.