Legal Soup - Too short timelines, confusing information, unclear tasks - Reach is as much of a legal jungle as it ever was. With the first deadline approaching in December, many companies are beginning to feel hot under the collar, and some are not even aware of their responsibilities under Reach. Chemical distributors have also not been spared from the expansive legislation. Peter Brandhofer, who leads the Reach activities at Hamburg-based chemical distributor Helm, told Brandi Schuster about the role his industry plays within Reach and why it is better to see Reach as a learning experience instead of panicking.

CHEManager Europe: Mr. Brandhofer, what role do chemical distributors play in communication in the supply chain, particularly concerning the flow of information?

P. Brandhofer: A very important one. The cooperation between chemical distribution and chemical production in Europe is very close; hence the role of chemical distributors in the supply chain communication under Reach is essential for the workability of Reach.

What do distributors have to do within Reach?

P. Brandhofer: The major task for the chemical distributors will be the fast and secure forwarding of information up and down the supply chain. This process is not just done by using the forwarding button of the e-mail program; the chemical distributor has to create an administrative link between the supplier/producer of chemicals and the customer. In situations where there are confidential business interests to protect, the chemical distributor cannot use direct forwarding; rather, the communication has to be edited without changing the basic information.
According to article 36 of the Reach regulation, the chemicals distributor has to document any communication concerning the health and safety information and about the uses notified by the customers. Due to the huge number of customers, the chemical distributors have to carry an additional administrative burden.
If the chemical distributor is acting as an importer, the company has the same obligation like any other chemical producer in Europe.

In your presentation at the Handelsblatt Chemie 2010 conference, you mentioned several problems: missing guidelines; IT tools; and lack of experience with guidelines and IT tools. Which of these problems are the most acute?

P. Brandhofer: Reach is creating a totally new approach in guaranteeing the safe handling of chemicals. On one hand, you have the change in the burden of proof, which means that now manufacturers and importers are responsible for the data as well as for the communication of the information on how the customer has to create working conditions to avoid harm humans and the environment.
Over the last three years, it has become apparent that the given timeline to reach this goal is too short. We had massive delays in creating guidance on how to get the data, how to interpret the data and how to communicate the results.
The European Chemicals Agency - ECHA - itself has dramatically shown that the process of creating software tools, combining legislator interests with scientific information, is not easy. I was disturbed when I read that ECHA was perplexed about the smaller-than-expected numbers of registrations from May to July. Registration delays are understandable when you consider how late the publication of the final format for the IUCLID software was, along with the tools to create the chemical safety report and then especially the final format for the exposure scenarios
One gets the impression that ECHA is thinking that the companies should be able to act immediately on receipt of such information without first reading, understanding and testing the guidelines and tools and this is simply not the case. ECHA is expecting responsible implementation of Reach by the registrants and the different members in the supply chain, but not giving enough time for implementation by the ECHA is irresponsible.
I think this is all a part of the general problem with the lack of time to create guidance, tools and lastly, experience within both industry and at the authorities as well. From the political objective and legal situation, it's a pipe dream to ask to postpone the deadlines for one or two years.

What would make more sense?

P. Brandhofer: It is more realistic to appeal for calm in the supply chain. This means not sending out serial letters on subjects that cannot be replied to or resolved within the obligatory legal dates.

If one has been receiving timely, well-presented, good quality safety data sheets from a well-known supplier for years, then there is no need to bother the supplier with letters and questionnaires. One can be satisfied with receiving these documents bit by bit.
This will create the time to learn how to handle these documents.

Are there other challenges that Reach has brought to the industry?

P. Brandhofer: Yes. Beside the normal questions which influence a buyer's decision for chemicals, like price, quality and availability, supply chain communication on health and safety aspects will become more and more important.
My impression is that especially downstream users do not realize what is expected of them under Reach. In fact, I would assume that the majority of downstream users are not familiar with their obligations. Help and guidance is needed, and the instinctive defensive reaction will be to request help from the supplier.
This will not happen immediately on Dec. 1, but the demand for good services on this subject will grow after this first registration deadline has passed. As a service-orientated chemical distributor, Helm is looking optimistically into the future; we have the set-up and we are prepared to offer the required service to our business partners.

How is the situation in the industry now compared to when Reach went into effect in June 2007?

P. Brandhofer: I am witnessing a dramatic exhaustion on side of the registrants. The experts are doing really an awesome job, but the willingness to deal with new formats and definitions from ECHA is next to nothing.
At the moment, registrants are only interested in getting the dossier ready and in receiving the registration number. In the supply chain, the least progress in awareness on the Reach obligations can be seen at the downstream users. I personally expect a rude awakening in 2011, when the first extended safety data sheets with exposure scenarios arrive in the companies and no one really knows how to handle them.

Pressure is mounting as the first registration deadline approaches on Dec. 1, and many companies and Substance Information Exchange Forums (SIEFs) are uncertain they will be able to meet the deadline. What are the consequences for SIEFs who don't manage to make the deadline? How realistic will enforcement of Reach be?

P. Brandhofer: I am not in possession of a crystal ball but I expect that some SIEF will fail in delivering their registration dossier in time. Reach is clear on that - article 5 is called "No data - no market."
The question really is who will solve the resulting problems without losing the reputation? I am confident that the industry will be able to provide a pragmatic approach to continue industrial processes. But how will the authorities handle pragmatic solutions? The authorities will have the task of sorting really problematic tasks from intentional violation of Reach.
I believe that Europe is well advised to accept that some violations will be undetected in the first run, but a pragmatic solution will be found to continue production or import of substances that fail the registration because of problems in the SIEF or the registration process.
ECHA itself is showing a pragmatic approach with the creation of the Directors Contact Group. My impression is that there is a problem because of the fact that the competent authorities are not invited to participate in this group. It looks like the competent authorities are a little bit offended by this, but I hope all participants will come together to solve the upcoming problems in a pragmatic way.

Do you see Reach achieving its intended goals in the long run?

P. Brandhofer: I think that Reach will change the common approach of working with chemicals in the long run. We are just at the beginning of a long process and all participants must persevere. I am sure that Reach regulation itself will change over the years. The legislative body has to implement the legislation within the practical experiences of the supply chain.