Plastics lobby in court to keep toxic item off EU list

"It's quite daunting, in my view, to come in and challenge this process which is really transparent and really well-documented," said Natacha Cingotti, campaigner for the Health and Environment Alliance, a Brussels-based NGO.

The court action began last year, but has received little media attention so far.

It is a complex case relating to EU rules on the use of chemicals, and two lists with dull-sounding names: the authorisation list and the candidate list.

If a substance is on the authorisation list, companies can only use it if they apply for authorisation from the European Chemicals Agency (Echa) in Helsinki.

If a substance is on the candidate list, it means that it is a candidate to be put on the authorisation list. The listed items are called substances of very high concern.

The idea for this extra step before requiring companies to apply for authorisation to use a substance is to give the market the time to find a substitute material.

However, EU law also gives citizens the right to be informed about listed substances.

"The idea is that any consumer can go to their retailer, and ask the retailer if in the product there are any substances of very high concern above a certain threshold," said Alice Bernard of the environmental lawyers' group ClientEarth.

Bisphenol A

In January last year, a substance called bisphenol A was put on the candidate list.

Bisphenol A is used extensively by the plastics industry, for example to make water bottles and CDs.

However, prolonged exposure could lead to health problems, which is why the EU banned using bisphenol A from the production of baby bottles. It will also prohibit the use of bisphenol A in thermal paper receipts from 2020 to protect cashiers.

In 2017, PlasticsEurope appealed the decision to put bisphenol A on the candidate list by going to the Court of Justice.

The Brussels-based lobby organisation says its 100-plus members produce more than 90 percent of all polymers. In 2017 it reported having a lobbying budget of at least €1.5 million and eight registered lobbyists.

A spokeswoman for the trade association said no one was available for an interview, but did send two press releases about PlasticsEurope's legal case - which formally consists of two separate cases.

The argumentation for the first case is already complicated and has to do with an exemption for the authorisation list: substances that are on the authorisation list can be used if their use is "intermediate".

"An intermediate, in very non-scientific words, is a chemical that is going to be transformed into another chemical," said Bernard.

"If bisphenol A tomorrow is put on the authorisation list, the companies that are using this chemical as an intermediate, would not have to ask for an authorisation," she added.

Bad press

Because the vast majority of uses of bisphenol A were intermediate, PlasticsEurope argued that putting bisphenol A on the candidate list would be "fundamentally disproportionate".

But according to Bernard, companies which use bisphenol A as an intermediate do not have to worry because they would be able to use the exemption.

She said she imagined PlasticsEurope's motivation was that having a chemical on the candidate list could be "bad press".

She also suggested companies might want to avoid one of the obligations that comes with being listed: providing information to consumers.

To make things more complicated, PlasticsEurope last year also filed a second case related to the listing of bisphenol A as a substance of very high concern.

After the EU's member states decided that bisphenol A should be listed because it was deemed toxic to reproduction, they later added another reason for listing.

"It is also an endocrine disruptor for humans," said Bernard.

Endocrine disruptors can harm people's hormone systems.

According to Natacha Cingotti of the health and environment group, bisphenol A is "probably one of the most well-known endocrine disruptors".

She said the scientific evidence has been well-documented.

"If you look back in the scientific literature, you find articles already decades ago about bisphenol A," she said.

Just last week, a peer-reviewed study said that exposure to bisphenol A can increase the chances for children of developing attention-deficit hyperactivity disorder.

This is why Cingotti used the phrase "pretty daunting" three times during the interview with EUobserver – the evidence is solid and the decision-making process is rigid.

Delaying tactics?

She stressed that the decision to list bisphenol A was taken unanimously by scientific experts from all 28 EU member states.

"To be fair, I find it pretty bold to be attacking the [decision]," she said.

Both Cingotti and Bernard mused that the reason behind PlasticsEurope court action was to delay the process.

"The first goal was probably to .. keep the substance on the market. Maybe a more refined objective is more to … derailing or preventing other identifications in the future," said Cingotti.

"They don't challenge the fact that bisphenol A is toxic for reproduction," added Bernard.

A spokeswoman for the Luxembourg-based court said there was no date yet for any hearing.

The European Court of Justice granted Bernard's organisation, ClientEarth, the right to side with the EU chemicals agency in court to defend the decision to place bisphenol A on the candidate list for being toxic for reproduction.

Echa told EUobserver that it could not comment on the case. However, it said that while the case was pending, bisphenol A will remain on the candidate list and that all obligations regarding being on the candidate list would continue to apply.