A way forward

1. Fully recognise and comprehend children’s rights in reform of EU chemicals legislation

Children have all human rights,²¹⁰ not because they are the "adults of tomorrow" but because they are human beings today. In recognition of the vulnerabilities associated with their early developmental stage, their additional legal rights as children are intended to protect them as such. For children’s rights to be realised, they must first be recognised. This requires developing strong legislation on chemicals safety, and this includes warding off harmful, paternalistic and adult-centric narratives that prevent children being recognised as independent rights holders.

EU chemicals legislation too often neglects the children’s rights framework and often tends to protect children because they are vulnerable groups, and not because they are right holders. Explicit and complete mentions of children’s rights as well as the references to the UNCRC, the ECHR, the EU Charter, and the EU Strategy on the Rights of the Child are so often missing from the EU legislation on chemical safety.

Acknowledgements of intersectionality between harmful chemicals and children’s rights violations are very rarely embedded in the EU chemicals legislation and legislative proposals. Protection against harmful direct exposure alone, while helping to respect the right to life and health, often fails to safeguard children’s associated rights to safe water, safe housing, nutritious food, and play. Were the relevant human rights instruments explicitly acknowledged to guide policy-making, such harmful oversights may be avoided. The children’s rights framework should be the compass, not the afterthought.

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2. Improve the collection of information on chemicals and its dissemination

Legislation must better enforce the principle of “no data, no market” (REACH, Article 5), which confers a burden of proof on chemical industries to show that substances pose no harm. The principle is meant to be a core principle of REACH, but current legislation falls well short of realising it, as chemicals are still being placed on the EU market without sufficient and adequate data guaranteeing their safety. In 2020, the EEA reported that up to 70% of REACH registration dossiers were out of compliance,²¹¹ such that unsafe chemicals are highly likely to be entering the market unnoticed. This data gap must be addressed with urgency. In particular, strengthening information reporting requirements will contribute to the identification of EDCs, to which children are especially vulnerable. This identification ultimately enables their appropriate management and restriction under several EU chemical regulations, including REACH and CLP, hence guaranteeing children are protected against exposure to those harmful substances.

The requirements should also apply to substances that pose significant risks that currently fall outside the regulatory framework. For instance, polymers are exempt from safety data reporting, despite developing knowledge of their adverse impacts and growing public and environmental exposure.²¹²

Sectoral regulations also suffer from a lack of enforcement, due in part to the difficulties and limitations of market surveillance and insufficient customs checks. For example, the official evaluation of the Toy Safety Directive found major loopholes in the market surveillance of online sales of products containing prohibited substances.²¹³ It is welcome that the draft regulation on toy safety addressing this gap proposes to improve both evaluation and surveillance. A Digital Product Passport (DPP) containing information on the compliance of each toy would be a prerequisite for all imports, including online sales. The measure is likely to contribute to transparency, as well as facilitate communication across the supply chain and help to remove more hazardous chemicals from consumer products.

Children and parents also have a right to know about the formulation of the products they buy and use. Accordingly, the assessment and management of chemicals must be transparent to public scrutiny. For example, DPP data should be freely available to the public, including in a child-friendly format, and be easily accessible to people with disabilities. Furthermore, while some information on the safety of substances is publicly available on the ECHA website, the data is difficult to navigate, understand, and process for the general public. Data should be made more comprehensible and accessible for the public, including parents and their children on account of their age.

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3. Tighten the management of chemical hazards

A principled approach: Precaution and prevention

In view of children’s legal right under the UNCRC to have their best interests made a primary consideration in all matters that concern them, decision-making concerning children in the EU should always be guided by precaution against, and prevention of harm. Accordingly, the EU chemicals legislation should always adopt a maximalist approach to safety. The best and highest level of protection should always be the guiding principle when assessing and managing chemicals.

These principles can make material changes to children’s lives. For example, ECHA estimated that the EU restriction on four phthalates (i.e. DEHP, DBP, DIBP, BBP) adopted in July 2020 “will save about 2,000 boys each year from impaired fertility later in life”.²¹⁴

Member states also can take the initiative. For instance, Denmark has begun to apply the principles of prevention and precaution to protect children from toxic threats. In 2018, the UN Special Rapporteur on toxics and human rights commended the government's leadership in preventing exposure of children to EDCs and other chemicals of concern.²¹⁵

Unfortunately, quite often, restrictions are only occurring at the national level. When taking place at the EU level, the process is extremely long, and ambitions can be watered down along the way. Several changes in the assessment and management in the EU are required to have a more efficient and fast-tracked restriction process.

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A grouping approach

Currently, it is the norm to assess each discrete substance (or small groups of substances) for risk separately. The substance-per-substance evaluation and restriction are highly time-consuming and resource-intensive. It typically takes around six years to restrict the use of a hazardous substance.²¹⁶ The approach also leaves exploitable loopholes, since a restriction on one substance may be bypassed by substituting a similarly hazardous substance from the same chemical group.

OECD policy experts support a grouping approach, according to which larger classes of chemicals are assessed collectively. When used, they argue, this approach has “allowed for alternatives to emerge rather than industry converging to a simple substitution with substances of similar intrinsic characteristics”.²¹⁷

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A generic risk approach

Whereas assessment and management of hazardous substances in the EU tends to assume that “the dose makes the poison”, studies have widely shown that many substances, such as EDCs, are appreciably hazardous even in very small quantities.

The EU currently uses a risk-approach consisting in assessing the safety of chemicals, meaning that even if a substance presents hazards, it can be authorised if all measures and steps to prevent exposure are demonstrated to be adequate at keeping risks below “acceptable levels”. However, for many substances, science proved that there is no such thing as “acceptable levels”, particularly for those in contact with children.

The generic risk approach (‘GRA’, so-called hazard-based assessment) offers an alternative method in the way chemicals are being assessed and managed. For instance, on the basis of generic risk considerations, all CMRs are automatically banned under the Toy Safety Directive. But this is not the case for carpets or furniture, with which children come into contact daily. EU chemicals laws must overcome these contradictions, in favour of an extension of the GRA in law and practice. GRA should be extended to cover more hazard classes and be embedded more explicitly in and across the overarching legislative framework (including REACH).

In the CSS, the EU Commission planned to

“extend the generic approach to risk management to ensure that consumer products – including, among other things, food contact materials, toys, childcare articles, cosmetics, detergents, furniture and textiles - do not contain chemicals that cause cancers, gene mutations, affect the reproductive or the endocrine system, or are persistent and bioaccumulative”.

In addition, the CSS planned to launch a comprehensive impact assessment to

“define the modalities and timing for extending the same generic approach, with regard to consumer products, to further harmful chemicals, including those affecting the immune, neurological or respiratory systems and chemicals toxic to a specific organ”.

The strategy also aimed to “phase out the most hazardous chemicals from consumer products for all non-essential uses”. The remaining “essential” uses of those substances should be subject to a GRA assessment, and only very rare and clearly justified authorisations should be granted to use those hazardous substances. Limiting the transition periods and exemptions from the GRA restrictions is crucial to ensure children’s health and their rights are protected. The longer the continued use of hazardous chemicals is allowed, the more children will be contaminated at an early age, and the more the ecosystems will deteriorate everywhere in Europe, with irreversible aftermaths on human health and the resilience of the environment. Only the uses which are absolutely essential to society and deemed as such after a thorough and independent assessment should be exempted from the scope of the restrictions or granted with a longer transition period.

Stronger restrictions, which would apply to a wide range of classes of chemicals and examine them for generic risks at the outset, would encourage the industry, especially the biggest companies, to invest in transition to suitable and sustainable alternatives. Several frontrunners have begun to do so, investing in research and development, and some alternative providers have already found suitable substitutions for many consumer and industrial uses of hazardous chemicals.²¹⁸ Some states have also taken action to phase out hazardous chemicals in a wide range of uses.²¹⁹ Although a combined, collective effort from industry and member states remains some way off, it is a suitable goal for EU policymakers.

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A combination effects approach

As discussed earlier, children are exposed to many hazardous chemicals via a wide range of exposure routes, including the use of toys, hygiene and cosmetic products, as well as in food and water.²²⁰ They are affected by chemicals not only individually, but also in combination, which can lead to unexpected effects on health.

In 2019, member states’ environment ministers called on the Commission to introduce requirements to ensure that the mixture effects of chemicals are addressed in the risk assessment and risk management processes of relevant EU legislation.²²¹ In 2020, the Commission acknowledged “a need to introduce or strengthen provisions to take account of unintentional mixtures in relevant pieces of legislation, such as REACH, water, food additives, toys, food contact materials, detergents and cosmetics”.

Introducing better assessment and management of combined chemicals is long-overdue. The Commission has proposed that a Mixture Assessment Factor (MAF) “seems to be the most pertinent for industrial chemicals under REACH, but it is applicable also to other regulatory areas, where the available data are insufficient to allow an assessment of actual co-exposure situations”.²²² A MAF can be used to lower the permitted level of exposure to a chemical in view of its combination effects with other chemicals.²²³ Scientists, together with consultants and the Commission, have now been working extensively on MAF for several years.

Addressing the combination effect of chemicals is a much-needed holistic approach in assessing and managing chemicals, as it contributes to a move away from the outdated and isolating evaluation of single substances.

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An export ban

Under the CSS, the EU promised to “lead by example, and, in line with international commitments, ensure that hazardous chemicals banned in the EU are not produced for export, including by amending relevant legislation if and as needed."

In a children’s rights context, nondiscrimination is not only a right but a cardinal principle informing the realization of all other rights. With the adoption of its EU Strategy on the Rights of the Child in 2021, the EU recognized this, stating that every child in Europe and across the world should enjoy the same rights and live free from discrimination and intimidation of any kind. Against that background, the Commission committed to propose concrete actions to protect, promote, and fulfill children’s rights universally.

By the same principle, export from the EU of hazardous chemicals should stop. Children must be protected against harmful exposure irrespective of where they live.²²⁴ Double standards in tackling harmful chemicals are unacceptable.

In addition to harming children in non-EU countries, harmful substances banned in the EU, exported and used outside of the EU, can return embedded in imported products, thereby also contaminating children in Europe. For instance, several very hazardous pesticides that are banned in the EU can still be sold outside of the EU and used in fields, thus polluting soils and water, eventually contaminating food that is then imported back into the EU.²²⁵ In 2020, 74 banned active substances were found in about 5,800 samples of food imported to the EU.²²⁶

A ban on the production and export of those hazardous chemicals will enable the EU to comply with its international and European obligations under human rights frameworks, as well as live up to the ambitions laid down in the CSS. It would encourage stronger global standards in the long term, while immediately enhancing protection for human health and the environment worldwide.

Chemical pollution knows no boundaries. Substances that are hazardous in the EU are just as harmful in other countries. Children must be internationally protected against harmful exposure to hazardous chemicals. The EU cannot continue exporting hazardous substances that have adverse effects on children’s health and the environment.

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4. Enforce regulations adequately and guarantee justice for affected children

To protect children properly, EU-wide chemicals legislation must require full compliance by member states and industry companies. The EU must enhance enforcement measures, while also guaranteeing access to justice and remedies for children in case of infringements of the obligations set out in EU chemicals legislation. In particular, legal liability in case of chemical pollution must be augmented.

“Child rights standards in international instruments do not mean much for the lived reality of children if they are not implemented”, warned the then Chair of the Committee on the Rights of the Child, Dr. Benyam Mezmur, in 2016.²²⁷ Children’s access to justice is a human right in itself, but it also enables all other rights; if these rights are to be more than a promise, they must be enforced when necessary.

The EU considers children as agents of change; the EU Strategy on the Rights of the Child aims to promote their right to be heard so that they may shape EU laws. The EU Children’s Participation Platform connects child participation mechanisms at local, national, and European level, to involve children in EU decision-making. But access to participation should be bound together with access to justice, such that children have avenues for remedy when inadequate decision-making has led to infringements of their rights. In particular, children should be able to seek redress in court when chemical contamination and pollution harm them. Those rights have been denied to children and their representatives for too long, effectively fostering and condoning industry impunity.²²⁸

Reform of REACH should explicitly embed the right of access to justice. Specifically, and as recommended by ClientEarth, the current revision round offers an opportunity to enshrine and enforce a right to require action and compensation from non-compliant chemical operators, together with a right to trigger action from public authorities.²²⁹

Footnotes

²¹⁰ CRIN, Children in vulnerable situations.

²¹¹ EEA, Report on The European environment — state and outlook 2020, December 2019.

²¹² EEB, Why should “No Data, No Market” apply to polymers?, October 2021.

²¹³ EU Commission, Evaluation of the Toy Safety Directive, November 2020.

²¹⁴ ECHA, Web Page on Phthalates.

²¹⁵ Report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes on his mission to Denmark and Greenland, A/HRC/39/48/Add.2, November 2018.

²¹⁶ EEB, The Need For Speed – Why it takes the EU a decade to control harmful chemicals and how to secure more rapid protections, July 2022.

²¹⁷ OECD, Regulating groups of chemicals: a cost-effective option for chemical safety, December 2020.

²¹⁸ See alternative providers’ presentations delivered during the Chemsec Conference, Find out how to replace “difficult” PFAS uses with safer alternatives, June 2023. Companies developing alternatives to PFAS include Transene Company, Inc., Ionomr Innovations Inc., Sympatex and ATMOsphere.

²¹⁹ For instance, in 2019, Denmark banned all PFAS in paper for food contact (e.g. fast-food wrappers).

²²⁰ CHEM Trust, Why you should know about 'the mixture effect’, March 2022.

²²¹ Council of the EU, Conclusions: Towards a Sustainable Chemicals Policy Strategy of the Union, June 2019.

²²² EU Commission, Progress report on the assessment and management of combined exposures to multiple chemicals (chemical mixtures) and associated risks, October 2020.

²²³ CHEM Trust’s report, Chemical cocktails – The neglected threat of toxic mixtures and how to fix it, March 2022; JRC, EDCMixRisk, EuroMix, EUToxRisk, HBM4EU and SOLUTIONS’ joint statement, January 2019.

²²⁴ Online conference, An EU-wide ban on the export of banned pesticides and hazardous chemicals: Why do EU policymakers need to act and how?, December 2022.

²²⁵ Strinati, M. for GIFT, PAN Europe denounces: the shield against pesticides in imported food is leaking, June 2021, and Stop EU exports of banned pesticides that return to our plates, February 2023; Le Monde, 'Exports of toxic pesticides by the EU come back on its citizens' plates', July 2022.

²²⁶ Ibid.

²²⁷ CRIN, Rights, Remedies and Representation: Global report on access to justice for children, 2016.

²²⁸ Le Monde, Les victimes de pollution chimique méritent justice, April 2023.

²²⁹ ClientEarth, Demand #6 for REACH reform: Access to justice, April 2023.