The EU debates consumer use of PFAS and critical chemicals

What qualifies as consumer use of PFAS and critical elements in the EU will dive into those debates on the next Chemical Watch podcast. Hello and welcome again to Inhesa's Chemical Watch news and insight podcast, where we aim to keep you up to date and ahead of the game with insights on the latest developments in Chemical's management and product compliance from around the globe. I'm senior editor Terry Highland and in today's episode we'll talk about what might qualify as consumer uses of PFAS in the EU as well as the critical chemicals alliance and its plans for identifying the most critical substances for the trade block and joining us to dive into these issues is Clelia Ozele, our senior correspondent for Europe and Lee Stringer, our Europe Managing Editor. Welcome Clelia and Lee. Hello. Hi Terry, good to be here. All right, we'll great to have you both here on the podcast. So let's start with PFAS. Now sometime next year we could see more more action, maybe a formal legislative proposal from the European Commission for a broad PFAS restriction under reach and the Commission has already said it potentially may distinguish between consumer and industrial uses of PFAS in the upcoming restriction proposal. So Clelia, let's let's start with the why here. Why does the Commission feel there is a need to distinguish between what is a consumer use versus an industrial use of PFAS? Yeah, so I think the starting point is that the Commission is trying to reconcile two objectives that are quite difficult to square. It wants a very broad restriction because of the persistence of PFAS and the emissions associated with their use, but it also recognizes that PFAS are used in some critical industrial applications where they may not be yet adequate alternatives. In June, Commissioner Jessica Roswell put that quite explicitly. She said the Commission will consider a ban on PFAS in consumer goods while continued industrial use may be permitted for some critical uses. So distinguishing between consumer and industrial uses potentially gives the Commission a way of moving faster with a form of restriction and keeping lots of people happy on this issue. Without waiting for substitutes, we developed for every industrial application. We already have an example of that more targeted approach with the EU restriction on PFHXA, which is a subgroup of PFAS. That restriction covers uses including consumer textiles, food packaging, cosmetics, etc. While leaving applications such as semiconductors, batteries, fuel cells, etc. outside the scope. We also have PFAS restrictions in some EU member states that only target specific consumer uses. With a big EU-wide PFAS restriction, we're talking about an extraordinarily broad restriction. The original proposal covered uses across a huge range of sectors from consumer products and textiles to transport, medical devices, energy, and so on. Echoes committees have been assessing those uses sector by sector. So politically and practically, the Commission is facing the question of how you phase out PFAS without removing substances that some strategically important technology still depend on. But on the other hand, the consumer industrial split isn't actually the approach the original restriction was built on. So the Commission here is effectively introducing another way of thinking about the restriction at the political stage. And that is where the issue I looked at in my article arises. So as soon as you decide that consumer and industrial users may receive different regulatory treatment, you need to know exactly where that boundary between them lies. All right. Well, you mentioned that the boundary between them, where might this distinguishing line be drawn and what might those consumer products be? So we don't yet know where the Commission will draw that line. And as I found when I when writing my article, stakeholders have very strong and often conflicting views on this. So there are some products that we would quite naturally think of as consumer uses. For example, cosmetics, clothing, textiles, cookware, food contact materials, household products, these would be the obvious examples. These are products that are bought and used directly by consumers. And in most cases, alternatives are already available. So this is what people call the low hanging fruit. But then you very quickly get into a gray area because consumers also buy mobile phones, cars, household appliances, heat pumps, medical devices. And those products can contain PFAS in components such as seals, membranes, cables. PFAS may have been used entirely within an industrial manufacturing process. And the consumer may never have any direct contact with that component. So the question is, is that a consumer used because the final product ends up with a consumer or an industrial use? Because that's where the PFAS is actually being used. There isn't an obvious answer sitting in chemical law. Reach does not contain a specific legal definition of consumer use that could simply be applied in this restriction to this restriction. There is echo guidance that talks about consumer uses as end uses of substances or mixtures, but that doesn't necessarily resolve the problem of PFAS embedded in complex articles such as cars or electronics. So reach has been in existence for 20 years and it has never needed to define consumer uses. So people are asking, why do we have to do that now? Essentially, I think there are two ways the Commission could approach this issue. It could simply say, these are the consumer product categories we're going to tackle first, similar to what some member states have done. For example, cosmetics, clothing, cookware, and so on. This avoids having to come up with one definition of consumer use that works for everything. Alternatively, it could try to draw a much broader legal line between consumer and industrial use, but that's where things get tricky. For example, take car or a mobile phone. It's obviously a consumer product, but some of the PFAS, as I said before, some of the PFAS inside it may be in highly specialized components produced in an entirely industrial setting. Yeah. Well, thanks, Kelly. I mean, you've outlined really a fascinating issue and a fascinating debate over this issue. Several NGOs and some EU member states don't really like this idea of splitting the PFAS restriction into consumer and industrial uses. Can you tell us where do these groups stand and why? Yeah, sure. First of all, it's important to say that the opposition isn't coming just from NGOs. The five authorities, member state authorities that originally proposed the restriction, these are Denmark, Germany, the Netherlands, Norway, and Sweden. They have also argued against dividing it into separate consumer and industrial restrictions. Their proposal was conceived as a broad or what they call universal restriction covering all uses. Their approach is essentially to start with a broad restriction and then to make exceptions or derogations for particular uses where these can be justified, rather than exempting a whole category simply because it is industrial. Many environmental NGOs take even a tougher position. They want the restriction to cover all PFAS across both consumer and industrial applications with just a few derogations which they say should be time limited and very short transition periods. They are concerned that you could otherwise, you could end up just tackling the easy part of the problem because a lot of the obvious consumer uses are already moving away from PFAS while significant emissions can also arise from industrial applications. This is during their production or at disposal stage. So they say you're not really tackling the problem. And some PFAS scientists share that concern. For example, Ian Cousins, Stockholm University, he's a very well-known PFAS expert. He told me that he really opposes splitting consumer and industrial uses for precisely this reason. All right, well, I guess diving into that debate over this issue a little further. So you outlined where NGOs and the five member states stand. But we also have some influential groups that are in favor of sort of this proposal and separating out PFAS from other uses, including industry groups. What is industry's position here? And why do they see it as a good idea? Right. So a number of industry groups really do favor separating consumer and industrial uses because they argue that a single approach doesn't reflect the very different ways PFAS are used. For example, Germany's VCI-- this is a very influential industry association-- they have argued that they have argued for prioritizing restrictions on consumer uses, which have the highest exposure and environmental impact while assessing industrial uses is in much more detail and at a later stage. They want this kind of specific focus later on on different industrial uses. So from industry's perspective, treating all of the users in the same way, risks restricting PFAS that are still needed for important technologies. And of course, industry doesn't like the idea of a huge group restriction. There is also another concept that some industry groups are pushing, which is diffusive uses. The Flora Polymers product group-- this is a part of plastic zero. They're quite influential. They're an influential voice in the PFAS debate. They're arguing that regulators should focus on applications that result in widespread emissions, rather than simply distinguishing between consumer and industrial uses. Importantly, they say that emissions from Flora Polymers can be almost fully controlled. So therefore, they want Flora Polymers completely exempted from the restriction process. But critics say this is going to leave out a huge range of applications, simply because they aren't particularly diffusive while they're being used. For example, Ian Cousins makes that point. Says, for example, a part like a seal, a membrane, or cable insulation may release very little PFAS during its use. But there can still be significant emissions during manufacture and disposal. So this is a debate, but this brings us back to the problem we talked about earlier. Even if you accept industry's argument that different users deserve different regulatory treatment, you still have to decide where one category ends and where another begins. That is the problem. Yes, indeed. Well, so you kind of touched on this a little bit. Are there other options out there for addressing PFAS or should the EU PFAS restriction focus on something else, like chemical structure or hazard or risk profiles? In fact, the original proposal defines PFAS very broadly on the basis of their chemical structure and treats them as a group rather than trying to regulate individual PFAS for their particular hazards. One reason for that approach is their extreme persistent, all PFAS are persistent. And another reason is to avoid replacing one PFAS with another closely related PFAS, which is also going to be persistent. But then there is a risk-based approach, which is what some industry groups are advocating. So rather than asking simply whether a substance meets the PFAS definition, you would look more closely at how it's being used. You look at emissions, and whether those emissions can be adequately controlled. This is what industry wants. None of these approaches entirely remove the need to look at individual uses, and that's why derogations have become so important. You start-- you can start from restricting PFAS as a broad group because of their persistence, but still allow more time for particular applications where alternatives are not yet available. So really, we have several possible dividing lines here. The real argument is over which should be the starting point. Do you begin with a whole PFAS family and then carve out particular uses where there is a strong case for doing so? Or do you begin by separating applications according to their risks, according to their emissions, or according to whether they're consumer or industrial uses? And that's why the consumer industrial debate is so important. Got it. And now, we've been talking about the commission's plans for the PFAS restriction proposal, and maybe some of the details they're considering. But, Clelia, can you tell us a little bit of where we are in the process? As I understand it, we're waiting for the final opinion of ECA's socio-economic analysis committee. And so then, when can we expect a formal proposal from the commission and how long before that proposal might become law? Sure. We're actually coming towards the end of the ECA part of the process. ECA's risk assessment committee, RAC, adopted its final opinion in March. And the socio-economic analysis committee, CERC, has published its draft opinion and completed a consultation on that. So we're now waiting for CERC's final opinion, which is expected by the end of this year. That will essentially conclude ECA's assessment. Then we move into a very different phase, because it becomes much more political. ECA will send its opinions to the commission, which will decide what it actually wants to put forward to EU member states as a proposal. So we're expecting that proposal from the commission in early 2027. But, of course, there could be delays. What is important here is that the commission isn't simply required to reproduce what ECA or the five dossiers submitters have proposed. It has to come up with something that can get sufficient support from member states in the Reach committee. So this is where questions like consumer versus industry uses, critical applications, derogations, et cetera, become politically very important. And the final restriction could therefore look quite different from the original proposal. And the political environment has changed dramatically since that original proposal was submitted in 2023. So competitiveness, industrial resilience, regulatory simplification are now much higher up on the EU agenda. We've also seen that shift very clearly with Reach itself. So the commission had been planning a Reach revision for quite some time, and that has been put on hold. So the political backdrop to the PFAS restriction today is very different from the one in which it was conceived originally. And I think there is also a recognition that the commission may have bitten off more than it could chew with PFAS. When this process started, the ambition was extremely high to develop a universal restriction covering this enormous family of chemicals across virtually every sector of the economy. But as the work progressed, the sheer scale and complexity of that task became apparent, both in terms of assessing all these different uses, but also ultimately finding a restriction that is politically acceptable to member states. So I think that what we're seeing now is an attempt to find a more pragmatic way through. And the political compromise could end up looking quite different from the original proposal. As for when the restriction will actually become low, that's much harder to predict. After the commission puts forward its draft, it has to go through the Reach Committee process with member states. Before the final measure can be adopted. So 2027 is an important year for the commission proposal and the political negotiations. But at this point, it would be-- be very difficult to predict a date when final restriction will be adopted, particularly given the scale and complexity of this file. All right. Well, that's that's kind of a really helpful walk through, like you said, both the scientific review and then now getting getting closer to that sort of the really political process and hammering it out in the commission. And I will just remind folks, listening, so Clelia did have an in-depth in-set insight article on this issue and the title of that for those who want to go and read the full article is why defining consumer use could prove contentious for the European Commission's PFAS restriction. So thank you for kind of taking us sort of behind the doors on that on that story, Clelia. So now let's switch gears a little and we will focus on another discussion going on in the EU this one with the critical chemicals alliance. So Lee will turn to you. First, can you give us a little background on on the alliance? What's its purpose and what's it doing? Yeah, thanks Terry and hello listeners. It's been an interesting one to follow this, the critical cameras alliance because it sits kind of on the fence of regulation around chemicals but more so around industrial policy. So it's a European Commission led initiative that was launched almost exactly a year ago and it's part of a broader effort to strengthen Europe's chemicals industry. And Clelia mentioned quite a few of the things that the aim is to address concerns about competitiveness, supply chain resilience and industrial capacity. So very much those things that are being focused on by the EU institutions. And the aim is to identify chemical production that Europe considers strategically important and assess where production or supply might be vulnerable. The alliance brings together the Commission, member states and it's also got stakeholders including chemical producers, downstream users, there's investors, there's academics and also civil society groups. And they're discussing how Europe can retain or perhaps secure the production of chemicals that are important to major industrial value chains which is again something that the EU is focusing on very strongly. So in broad terms, it's similar to discussions we've seen around critical raw materials in the EU and the alliance asks whether Europe considers a chemical strategically important and whether there are risks to maintaining production and supply rather than whether it's hazardous or safe under regulations such as reach and CLP. So the tension comes when a substance is strategically important but also raises health or environmental concerns and that's where we've been very interested in the debate. And just to go on a little bit more about that is it's important to understand that this isn't a chemical safety initiative. It's focused on industrial policy but and it's a big but that doesn't make it separate from the debate about how chemicals are regulated. Supporting production of a strategically important substance inevitably raises questions about how that support fits with efforts to restrict hazardous chemicals or move to say safe alternatives. So critical status wouldn't itself override chemicals legislation but it could influence the political and economic debate around future controls and that's why we're following in and so interested. Very interesting. Yes sort of where there may be more political support for certain substances. So well thank you for the background Lee and well let's dive into a little bit more which is that there's been a little controversy around the the critical chemicals alliances work lately. So what are some of the substances that that they have sort of looked at that might be listed as critical and and why has this led to some criticism over the alliance and it's it's potential methodology here. Yeah that's really where the controversy started and again it's kind of why it's been a very interesting one to follow but a chemicals news and insight obtained leaked documents from the alliance earlier this year and the documents identified 49 chemicals and chemical groups that qualified under a test of the proposed methodology that the alliance had come up with and they included major building bot chemicals that we often know ethylene, propylene, benzene, styrene, methanol and chlorine but also substances such as titanium dioxide, PVC and PTFE which is a flora and polymer that as we know as clearly we're saying also it's called up in the Holy UP fast restriction debate. So the methodology looked at factors such as import dependence, loss of European production, competitiveness pressures as well as the importance of chemicals to sectors like healthcare defense semiconductors and clean technologies which again is what they use very much focusing on. So what attracted criticism was the methodology did not include any dedicated assessment of hazard toxicity, reach status or CLP classification. It also considered a substitute ability criterion but ultimately it removed it so NGOs argued that the framework could end up supporting production substances that are economically important even if they present environmental health concerns. So the Commission and Industry participants have generally argued that criticality is a separate industrial policy question and should be assessed completely independently from chemicals risk management and that's really the core tension at the heart of the debate. Interesting and and we've seen some environmental groups and or NGOs leave the alliances is that right? That's right so we had two very large quite well-known NGOs, environmental NGOs, the European environment, the Bureau, EEB and KEMSEC and they both withdrew from the alliance earlier this month. They argued basically that the industry had exercised disproportionate influence over the process and that civil society groups had not had a meaningful role in shaping the alliances conclusion that we saw through the documents. The groups also objected to the methodology itself so there was concern that high energy costs, regulatory pressure, environmental constraints could end up being treated as reasons to classify chemical production as vulnerable or deserving of support and the Commission's view is quite different. It has maintained that the alliance is about industrial resilience and competitiveness and it's not intended to weaken reach or shield substances from chemicals regulation but the departure's highlight kind of a wider debate we're seeing in Brussels generally about how Europe balances industrial competitiveness, strategic autonomy and environmental objectives. All right a perennial question indeed but but let's let's get to well let's say we get to a point where there's agreement that critical chemicals alliance says here are the chemicals that are chemical substances that are critical to the EU. What happens then? Yeah that's actually kind of where the discussion is moving now and a tricky one it's one of the recent developments we've reported is that the Commission doesn't appear likely to simply just adopt the alliance's proposed list in full so what the majority of alliance members will looking at was these 42 49 substances well instead the Commission said it will use the alliance's methodology as a starting point and work with its joint research centre to identify a much shorter list more focus selection on the EU's most critical molecules. Once that process is complete the focus then shifts to implementation and the Commission has highlighted areas such as trade defence, industrial investment, protection of critical production capacity as I mentioned and of course measures to create markets for lower carbon and more sustainable chemicals so the alliance itself has proposed a much wider set of measures including funding support faster permitting closer supply chain monitoring and even stronger trade protections and really the key question now is which of those recommendations will the Commission ultimately decide to pursue. All right and so how does this idea of a you've talked a little bit about this but want to go a little bit deeper but which is how does the idea of a chemical being critical to the EU what's the interplay then with the trade blocks other laws so for example what if you have a substance that's already restricted under the reach and it's deemed critical do those reach restrictions go away what happens. Yeah it's kind of the big question that's been on the the lips of everyone since the alliance started last year. And the immediate answer at the moment is no, not based on anything the commission has said, it said the commission, sorry, the commission is consistently treated criticality as an industrial policy assessment that's separate from risk management under reach and other chemicals legislation. So no, a critical designation would not make an existing reach restriction disappear. In practice, that means the two systems can potentially reach different conclusions about the same substance, a chemical maybe strategically important to certain industries while also being hazardous or subject to restrictions. Critical status could influence discussions around investment perhaps, supply security, maybe production capacity or trade policy, but it isn't a legal exemption from reach. All right, and let's tweak that scenario a little bit. So what if you had a substance that is already the alliance and everybody agrees, yes, this is critical. Let's maybe it's PTFE and throw that one out there. So down the road, if something is already listed as critical first, does that mean it would potentially never be subject to restriction and under something like reach or another EU law or would be more likely to get derogations from any potential restrictions? Another important one. And again, the answer at the moment is no, the commission is being quite clear that the exercise is not intended to show the substances from regulation. So being designated as critical would not prevent future restrictions per se. PTFE is actually a useful example because it appeared on the alliance as leaked list, but it's also within the scope of the proposed EU-wide PFAS restriction at the moment. So those are two separate discussions addressing different questions. One asks whether production is strategically important to Europe. The other one is asking whether risks need to be managed through regulation. What critical status may do is increase political and economic attention on a substance because policy makers will also be thinking about supply chains and again the industrial competitiveness and the availability of alternatives, which is an important factor as well, but it would not create a permanent exemption from regulation according to the commission at the moment. All right. Well, thanks for kind of bearing with me to dive into those, provide a little context. And I had one more question, which is both you and Kelly, a sort of rage, the issue of simplification. Now, Kristen Schreiber is the director for chemicals and bioeconomy for the commission's DG grow unit. That's the directorate general responsible for ensuring a strong competitive EU market. Kristen recently spoke at an in-hessa event on chemicals management into EU. And she said that initiatives like the critical chemicals alliance may not be enough on their own to restore the EU's competitiveness without even broader regulatory simplification and reducing regulatory burdens. So what are maybe some of the other simplification measures that are out there in terms of chemicals management? Should we expect to see more things like the critical chemicals alliance or other measures in the coming months or years? Yeah, I think the alliance is a good example because it's part of a much broader shift in EU policy thinking, which we've kind of talked about both in Clevver's part with PFAS, but also in the critical chemicals alliance. For several years, much of the discussion around chemicals focused on sustainability and risk reduction. And you might remember that old phrase, the green deal. Well, those objectives and priorities haven't disappeared, per se, but we're now seeing much greater emphasis on competitiveness, strategic autonomy, again, industrial resilience and Europe's ability to a big one, which would retain manufacturing capacity. And within the critical chemicals alliance itself, we've seen proposals ranging from fast permitting and investment support to stronger trade defense measures, energy cost relief, efforts to create demand, etc, etc. We, of course, simplification has been a large part of that and we have the omnibus proposals, which are looking at how to simplify requirements put on companies by regulation. But Christian Shriber's point was essentially that initiatives like the alliance can help address some challenges, but they won't solve all of the competitive issues facing the European chemical sector. And industry groups continue to point to issues such as investment conditions or production costs and again energy prices and regulatory complexity as factors affecting Europe's attractiveness as a manufacturing location. So yes, I think we'll continue to see initiatives that combine industrial policy and chemicals policy in ways that we probably haven't seen before. And the critical chemicals alliance is probably one example of a broader trend towards using industrial policy tools alongside traditional chemicals regulation. So for companies, that's why this really matters. Businesses increasingly need to follow not only what's happening under reach and other regulatory frameworks, but also a growing set of industrial policy initiatives that could really influence investment decisions and supply chains and trade measures. And also what's very important, future market opportunity. All right. Well, really interesting stuff and certainly we'll be interesting to see when that discussion of sort of what is critical versus, you know, what maybe has hazards that should you we should protect health and the environment. Maybe when those two things do merge into a single discussion, where where do those boundaries fall? And I would love to keep discussing more, but we'll have to save that for a future podcast as we'll bring this current episode to an end. But before we do that, I certainly want to offer a hearty thank you to both Clellia and Lee for for taking us through consumer uses of PFAS and the critical chemicals issue. So both of you, thank you very much for joining us today. Thanks, Siri. All right. And I hope everybody enjoyed listening to the discussion as much as I did. And do you listeners? Thank you for tuning in as always. And if you do enjoy listening to the podcast and have any thoughts, please feel free to reach out. We welcome any comments you might have on this or other podcasts or ideas for a future episode. And you can send any comments my way. And that's at [email protected]. Well, that'll do it for this episode. Be sure to keep an eye out for our podcast short, where we quickly cover the biggest chemicals management headlines each week. As opposed to our deeper dives like this episode. But until next time, as always, stay informed and stay compliant.