EU Court Dismisses PlasticsEurope’s BPA Challenge

16.07.2019 -

Dismissing a challenge by the European plastics producers‘ association PlasticsEurope, the General Court of the European Union has upheld a classification by the European Chemicals Agency (ECHA) that bisphenol A (BPA) is a Substance of Very High Concern (SVHC) under the European chemicals legislation REACH.

ECHA’s decision adopted in January 2017 was based on a dossier compiled by France, which had pushed for the classification. It also lists BPA, which is used in production of the engineering plastic polycarbonate as well as in epoxy resins for can liners, as an endocrine disruptor.

In announcing its objections two years ago, Plastic Europe argued that the decision weakened the strong principle of science-based regulatory decisions in the EU, and said the classification would result in “further uncertainty without providing benefit to the safety of consumers.”

The association’s PC/BA working group noted also that the European Food Safety Authority, EFS, had found earlier that BPA was not an endocrine disruptor.

In its challenge to last week’s court decision, PlasticsEurope said that, in its classification, ECHA had breached the principle of proportionality and had committed a “manifest error of assessment” by failing to take into consideration information on the use of BPA as an intermediate.

The association requested that the reprotoxicity identification for the candidate listing as an SVHC be annulled. Its argument, then and now, is that BPA is used mainly as an intermediate, which it said means it is automatically exempted from authorization under REACH. An SVHC listing is therefore “disproportionate.”

The General Court rejected the argumentation that a substance being used solely at the production site or transported as an isolated intermediate makes it exempt from all the provisions of REACH. Such a substance does not escape the identification procedure provided for in the regulation process, it said, as, the exemption concerns only the authorization procedure and does not preclude its being identified as a substance of very high concern.

As an aside, the court noted that one of the objectives of adding chemicals to the SVCH list is to share information about potentially toxic substances along the supply chain, including customers who buy the products. This also serves to improve information for the public and professionals as to the risks and dangers.

Reacting to the judgment, PlasticsEurope said it is currently evaluating it and assessing options. However, it maintains that the court’s conclusion “is in clear contradiction to the express provisions of the REACH regulation as it misapplies and misinterprets the concept of intermediates.”

“In any event,” the producers’ grouping concluded, “the judgment does not affect the current situation, which is that BPA (whether an intermediate or not) can be lawfully and safely placed on the EU market in compliance with all relevant legislation.”