The Weekly Pulse: 20 - 24 May, 2024
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This Week's Trending Sources in C2P
What are our Content Team talking about?
Germany - New deadline for first review of supply chain due diligence reports
The Federal Office for Economic Affairs and Export Control (BAFA) has announced a new deadline for the first review of reports made under the German Corporate Due Diligence in Supply Chains Act. Reports will now be reviewed?for the first time starting on?1 January 2025,?including cases where the report was due and has been submitted before this date. BAFA will not sanction the late submission of reports as long as they are submitted by 31 December 2024.?This concerns both the submission as well as the correct publication of the reports.?
The change comes against the backdrop of the current implementation process of the new Corporate Sustainability Reporting Directive (EU) 2022/2464.?
Background
The?Corporate Due Diligence In Supply Chains Act entered into force on 1 January 2023 and applies to all companies that usually employ at least 3,000 people?(since?1 January 2024, this figure has?been amended to 1,000 employees). Based on Article 10 of the Act, companies must submit an annual report on fulfilling their due diligence duties. The report must be submitted 4 months after the end of the company's financial year and be made available on the company's website free of charge.?
Further information on the submission of the report can be found here.?
What are our Knowledge Partners talking about?
Essential Use Series: What is an essential use of a substance? The EU decides
From Rina
This article is one of a series associated with the EU’s essential use concept. This article considers the core concept and how it defines what is necessary for health and/or safety or critical for the functioning of society. In other articles, we explore the essential use obligations, what a ‘most harmful substance` means, and the design implications around acceptable alternatives.
Background
Chemicals are widely used to produce the products we need and operate the systems we rely on. However, chemicals can have properties which are detrimental to human health and/ or the environment. The EU has long pursued a policy of seeking to eliminate or reduce the use of hazardous chemicals through legislation with REACH and RoHS are well-known examples, although they were not the first. However, the substitution of a hazardous chemical with a more benign alternative is often not straightforward and in some cases is arguably impossible. It is in this context that the concept of an essential use has been developed as means of considering and balancing the pros and cons of any particular use in deciding whether it should be permitted.
What is an Essential Use?
The European Commission?has published its guiding criteria and principles for what would constitute ‘essential uses' of the most harmful chemicals*
The use of a most harmful substance is essential for society if both the following two criteria are met:
1) that use is ‘necessary for health and/or safety’ or is ‘critical for the functioning of society’, and
2) there are no acceptable alternatives.
The concept of ‘essential uses' helps assess when the most harmful substances still need to be used, from a societal point of view. The essential use of the substance can continue for a certain period of time, although all other uses will cease. The concept is not intended to determine whether a certain substance, product, product group, or service is itself essential for society, nor whether an individual consumer or company considers the use essential for them. But rather whether a use is essential, relevant to its context. For the use of a ‘most harmful substance’ to be essential , the technical function of the substance must be needed for the final product to deliver its service. A substance may be essential to use in one product but not in another.
What kind of uses are ‘necessary for health and/or safety’?
In the communication on essential uses* examples given of uses necessary for heath and / or safety are to:
? Prevent, monitor or treat illness and similar health conditions
? Sustain basic conditions for human or animal life and health
? Manage health crises and emergencies
? Ensure personal safety
? Ensure public safety.
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From these examples, it is clear that medical uses and defense uses of substances could be considered to be essential uses, but only if there are no acceptable alternative materials or technologies that can give an adequate outcome for the use. There is a clear expectation that most uses will be substituted and that the remaining uses will be minimized as part of the concept. It will be interesting to see how this consideration of ‘ensuring public safety’ impacts defense misapplications and exemptions in EU chemical regulations, which currently don’t formally incorporate any consideration of acceptable alternatives, leaving that to the Member State to consider should they so wish.
What sort of uses are ‘critical for the functioning of society’?
Users can be essential if they are used in critical applications – notably for the green and digital transition, but also security and defense can be classed as essential. The use of a most harmful substance is critical for the functioning of society if the use and the technical function of the substance in that use are critical in order to:
? Provide resources or services that must remain in service for society to function (e.g. ensure the supply of energy and critical raw materials or resilience to supply disruption)
? Manage societal risks and impacts from natural crises and disasters
? Protect and restore the natural environment
? Perform scientific research and development
? Protect cultural heritage
What does this mean for Chemicals Regulation?
Currently, the concept as defined is not part of any EU legislation, including the REACH regulation. In questions and answers on the essential use concept** the European Commission avoids saying it will influence the Per-and Poly fluorinated Substances (PFAS) restriction proposal. Despite this, RINA believes the communication on essential uses provides useful context for industry on how future consultation responses may be viewed. Compelling arguments for the critical functioning of society, or a health and/or safety use, and a clear lack of available alternatives will be needed for future misapplications, exemptions, or derogations in updated EU chemicals-related legislation. The benchmark is clear.
The EC says, “The initiative will help position the EU industry as a global front-runner, capitalizing on a high consumer demand for safer, toxic-free products in the large EU Single Market.”. The clarity brought by the essential use concept is to be welcomed, as it can help progressive businesses plan for and invest in the best options when considering new product concepts and design changes.
What are the next steps?
Essential Use at this point has no legal effect. However, it is now a defined concept that the European Commission intends to use in shaping EU chemical regulation as it is reviewed or developed over time. Therefore, we will likely find it becoming embedded in EU policy, bringing greater consistency in approach. It would not be surprising to see other jurisdictions being influenced similarly.
*i Communication on essential uses of chemicals - European Commission (europa.eu)?https://environment.ec.europa.eu/publications/communication- essential-u...
**ii Questions and Answers on essential use chemicals (europa.eu),?https://ec.europa.eu/commission/presscorner/detail/en/qanda_24_2152,
What are our Clients asking about?
"Is the French Triman logo required for professional products?"
Answered by Conor O’Donoghue
The Triman logo is required by virtue of Article L541-9-3 of the French Environmental Code. This Article states that any product placed on the market intended for households subject to Point I of article L541-10, except household packaging of glass drinks, shall be subject to this labeling requirement.
So, for the Triman logo to apply, two conditions must be met:
Firstly, in relation to the first bullet point, it is important to note that “household” is not subject to any legal definition but covers a broad scope that could include products not necessarily intended for households but may be accessible to households. Question 12 on this FAQ page from the French Ministry of Ecology does provide some guidance:?https://www.ecologie.gouv.fr/sites/default/files/FAQ%20Triman%20et%20frises.pdf
It states that if the product is likely to be placed on the market for a household, the Triman logo and sorting information are to be affixed. If the marketer is sure that the product cannot be placed on the market for a household, then they are not required to affix the Triman logo and sorting information.
In relation to the second bullet point, Article L541-10-1 states that the EPR requirements shall apply to all packaging used to market products consumed or used by professionals from January 1, 2025 (except for professionals in the catering industry which were covered since 1st January 2023).
So, this covers packaging used to market products used by professionals rather than “professional products”. This doesn’t necessarily mean that the Triman logo shall be applied to these products unless the products may end up in households as outlined above.
You may find a full list of products subject to EPR in France here: https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000043974960
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