Towards end-2011, the EU's Forum for Exchange of Information on Enforcement published a Facts Report on the Coordinated Forum REACH Enforcement Project. The report covers the following aspects of the REACH Regulation, which will be of particular relevance to companies that are concerned with REACH compliance: registration, pre-registration and the provision of appropriate safety data sheets (the "REF-1 project"). The Report covers the period from May 2010 to April 2011.
As will be recalled, REACH requires all companies manufacturing or importing chemical substances into the EU above certain quantities to register those substances with the European Chemicals Agency (ECHA). The latter, in turn, must evaluate the safety of the chemical substance before it can be marketed within the EU.
The first phase of the enforcement assessment was performed during the period May to December 2009 with 25 Member States participating and almost 1,600 companies being inspected. The aim of the project was to verify the compliance of importers and manufacturers (or only representatives of non-EU manufacturers) with the REACH obligations on pre-registration, registration and Safety Data Sheets (SDSs).
The follow-up phase was carried out in 19 countries (during the period from May 2010 to April 2011) and was guided by a Working Group which issued a project manual with guidance and recommendations for the benefit of inspectors. In the participating countries, national coordinators were appointed who, following training by ECHA at the beginning of the project in April 2009, were responsible for the training of inspectors in their own countries. In the Report, the results of the project are presented, but do not include conclusions and recommendations - these latter items will, it is expected, be published at a later date.
A total of 791 inspections were carried out in the 19 participating countries, including the largest EU Member States, namely, Germany, France, UK, Spain and Italy. The type of companies inspected included importers and manufacturers of items commonly sold, i.e., chemicals, chemical products and preparations, rubber and plastic products, and fabricated metal products, as well as the companies within the wholesale and retail trade. From among the 1,600 companies inspected, 278 were importers and 449 were manufacturers.
In 23 cases, no pre-registration or registration had been submitted, and in 9 cases the content of the pre-registration was incorrect. Therefore, the total number of non-compliances regarding the registration obligation was 32. For 86 inspections, the inspected company was deemed to be a first-time manufacturer or importer and therefore entitled to benefit from a late pre-registration.
As for the SDS obligations, 623 of the visited companies possessed the required SDSs. For 67 companies, the required SDS was not available or only partly available. It is particularly noteworthy that, in total, 1,969 products were checked and of these, 379 SDSs were not correct.
Overall, cases of non-compliance were found in 20% of the companies inspected. The measures employed against these companies included: blame-and-shame, i.e., publicising the wrongdoing (in 2 cases), letter of appeal (in 36 cases), an administrative order (in 42 cases), a fine (in 6 cases), criminal complaint (in 3 cases), and other measures in 108 cases (i.e., written advice, additional information requests, etc.).
In conclusion, the results were felt to be comparable with those of the same project carried out during 2009, albeit with only half the amount of inspections this time around. The percentage of non-compliance for this assessment was slightly less (20%) than in the initial project (24%), which is viewed as a welcome improvement.
In light of these findings, companies may deem it best to continue their efforts to ensure that they are operating in full conformity with the provisions of REACH, and should also keep an eye out for the forthcoming conclusions and recommendations of the Report, which may provide useful guidance.
