The European Commission has confirmed that plans to introduce substitution pathways, where stakeholders come together to set action plans for replacing certain substances, will be on a voluntary basis only.
The EU executive has been deliberating whether such pathways should be voluntary or legally required, and whether engagement in a pathway should be a formal condition for a derogation from a restriction.
The Commission has now told Chemical Watch News & Insight that the option to implement substitution pathways as a legal requirement is off the table. It did not explain its reasoning, but the decision is consistent with the executive’s simplification agenda, which aims to reduce the regulatory burden on businesses.
NGO ChemSec’s head of policy, Theresa Kjell, said companies are better placed to determine if substitution work is best carried out on their own or in collaboration with other stakeholders, for example, via the Commission’s planned substitution hubs.
"It is positive if [pathways and hubs] are available, but to force companies to participate doesn’t make sense," she said.
Companies can choose to independently start phasing out substances early on, or wait and be obliged to meet set regulatory deadlines, said Kjell.
"In both cases, companies do substitution planning. We don’t see a reason to mix this [planning] with the regulation," she added.
Kjell said forcing companies into substitution pathways without set timelines creates uncertainty over when they – and others involved – must phase out substances or meet restriction requirements.
Without these timelines, predictability is removed and the strong incentives to substitute and innovate are no longer present, she added.
Cefic said discussions have shown that linking substitution pathways to regulatory processes, whether on a voluntary or mandatory basis, is "not straight forward".
Many practicalities would need to be assessed, including how to collaborate across value chains, how to ensure relevant information feeds into regulatory processes in a timely way, and how progress can be monitored without creating undue administrative burden, it said.
"Given the complexity of substitution pathways, it is important that any approach provides legal clarity and predictability, while also supporting the development and scale‑up of alternatives in Europe," Cefic added.
Enabling substitution
According to a Commission tender for one of the substitution pilot projects focused on brominated flame retardants (BFRs), REACH and other EU regulations have not yet enabled the broad, systematic substitution of hazardous substances with safer alternatives.
"There is a need to help all businesses and value chains in their substitution journey to ensure EU legislation can achieve intended objectives," the tender said.
In its substitution pilot project, which involves chromium (VI) substances in hard chrome plating and PFAS in batteries, the Commission will trial the potential contribution of an EU substitution centre or a network of centres.
The tender said the aim of substitution pathway discussions is to identify all relevant challenges and opportunities in replacing a chemical or group, and establish an action roadmap for substitution with clear but flexible milestones.
"This can provide guidance for all involved actors on the way forward," it said.