PFAS and REACH: fit for purpose to deal with these complex chemicals?

Abstract

In short, the objective of my research was to analyse and evaluate international and European legal instruments governing the manufacture, placing on the market and use of per-and polyfluoroalkyl substances (PFAS). The objective of the presentation is to reflect upon the main instrument: REACH. For this purpose, the presentation would be divided into three elements. First, a short description of PFAS, its applications, and its characteristics and risks for human health and the environment. Second, a theoretical explanation of the main aspects of REACH, whereby the focus will be on authorisation and restriction. Advancing from this theoretical explanation, the intention is to point out how the European Commission and the European Chemicals Agency have dealt with PFAS in practice. Third, the aim is to present the main initiative within REACH to restrict the manufacture, placing on the market and use of all PFAS, except for the application of fire-fighting foams. A discussion on all aspects of this initiative would be too broad. Therefore, I would focus on the concept of ‘essential use’, which is a concept advanced by the European Commission as a general chemical policy doctrine, including PFAS in particular. The main points of the argument are threefold. First, on the one hand, REACH is an extensive regulatory framework that is theoretically able to govern chemicals that are perilous for human health and the environment, specifically via registration and substance evaluation, authorisation, and restriction. Second, on the other hand, the response of the European Commission and ECHA has been limited in practice due to the general absence of authorisation requirements and restrictions for PFAS. Last, the prior analysis will be nuanced by stating that the initiative to restrict all PFAS is an enormous opportunity for the European Commission to protect human health and the environment. However, the success of this initiative will depend on the application of the essential use doctrine. The main conclusion of the presentation is the stark difference between the theoretical thoroughness of REACH and the limited application of REACH in practice, which is to be nuanced by recent initiatives. Nevertheless, the devil is in the details i.e., the application of the essential use doctrine.