Obligations associated with the use of Substances of Very High Concern (SVHC)

Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals, known as REACH Regulation¹, entered into force on 1 June 2007. As the title of the regulation indicates, the document governs the registration, evaluation, authorisation and restriction of chemicals. Among the objectives of this regulation is to ensure that manufacturers and importers of chemicals perform tests to determine the hazardous properties of the substances, and where substances with selected dangerous properties, posing a hazard to human health and/or the environment, are used, and to replace them step-by-step with less hazardous alternatives.

The main hazardous properties to which the authorisation and restriction obligations apply include (as regards human health) carcinogenicity, mutagenicity and reproductive toxicity in categories 1A and 1B. In the environmental domain, efforts to use less dangerous substances concern substances that are persistent, bioaccumulative and toxic or very persistent and very bioaccumulative. In addition to chemical substances with such basic dangerous properties, the monitoring obligation and restrictions also apply to substances disturbing the endocrine system (endocrine disruptors) and substances that may adversely impact human health in other aspects, e.g., such as have highly sensitising effects if inhaled or aggressively affect specific human organs on repeated exposure.

An overview of such additional hazardous properties is included in Article 57 of REACH Regulation¹. Substances meeting such criteria are referred to as Substances of Very High Concern, abbreviated SVHC. Based on proposals from member states and subsequent public discussion, the European Commission decides on the addition of such substances to the candidate list of substances for inclusion in Annex XIV of the REACH Regulation¹, namely the “Candidate SVHC list”. This list is expanded periodically and contained 219 substances as of 8 July 2021.

The current version of the Candidate SVHC list can only be found on the ECHA (European Chemicals Agency) website: echa.europa.eu/cs/candidate-list-table, while it is not included in any legislative document.

The fact that a substance is added to the Candidate List (i.e. is proposed for inclusion in Annex XIV) imposes certain obligations on manufacturers, importers and downstream users, starting the day the substance is added to the list. Such obligations not only cover the substance on its own or its presence in mixtures, but also its presence in articles.

The main obligation is to transmit the information about the inclusion in the list along the supply chain, viz. via the safety data sheet (according to REACH Regulation¹ Article 31). This obligation also concerns substances present in mixtures at concentrations ≥ 0.1 wt.%.

Another obligation applies to the manufacturers and importers of articles that have the obligation according to Article 33 of the REACH Regulation ¹ to provide the recipient with information enabling the article to be safely used, including the name of the SVHC as a minimum. This obligation applies to articles containing the SVHC at a concentration ≥ 0.1 wt.%. Furthermore, Article 7 of the REACH Regulation¹ requires each manufacturer or importer of such articles to submit notification of any article containing a substance from the candidate list of SVHC to ECHA if the substance is present in those articles in quantities totalling over one tonne per producer or importer per year. This article notification must be performed by the manufacturer or importer within 6 months of the date the substance was added to the candidate list. This obligation is also enshrined in the Czech Chemical Act (Section 22 paragraph 7 of Act No. 350/2011 Coll.,²) enetering into force 1 January 2021.

Additional, and much more substantial, obligations arise on the inclusion of an SVHC in Annex XIV to the REACH Regulation¹ – i.e. LIST OF SUBSTANCES SUBJECT TO AUTHORISATION. If the European Commission includes a substance from the candidate list in Annex XIV to the REACH Regulation¹, the European Commission shall also set the “sunset date” – the date starting from which the substance must not be available in the market and must not be used unless permission is granted for specific use.

If the manufacturer or a downstream user wishes to make the substance available in the market or use it after the sunset date, they apply for an authorisation covering the use of the substance for a precisely specified purpose, and this application must be submitted no later than 18 months before the sunset date. The continuing use of the substance (use for which the application for authorisation was submitted) after the sunset date is possible until a decision concerning the application is issued. Once the decision has been issued, the substance can only be supplied and used in the specific supply chain based on the authorisation. Annex XIV is supplemented with additional candidate substances on an ongoing basis and contained 54 items as of

9 August 2021. The current list of substances included in Annex XIV to the REACH Regulation¹ can be found on the ECHA website: https://echa.europa.eu/cs/authorisation-list.

A list of authorisations and applications for authorisation for specific uses – the “REACH Authorisation Decisions”, can be found on: https://ec.europa.eu/docsroom/documents/46126.

Once the authorisation has been granted, the substance supplier must specify the number of the authorisation in the safety data sheet and on the label, and the downstream user must notify ECHA of the use of the substance within 3 months of the first supply, using the above number instead of the substance description. The use of the substance must comply with the conditions specified in the authorisation.

Selected information from the downstream user’s notification shall be transferred by ECHA to the manufacturer – authorisation holder to enable the manufacturer to use the information if they apply for a renewed authorisation.

Based on the obtained reports, ECHA adds information as to in which countries and in what amounts each substance included in Annex XIV may be used.

Among substances that must not be used without authorisation are materials containing hexavalent chromium, which find wide industrial use. This is illustrated by the fact that by the middle of this year, the European Commission had issued about 60 authorisations to use chromium(VI) oxide for functional chromium-plating and surface treatment of steel, tin-plated steel, aluminium, copper, cadmium and other metals and alloys for various industrial branches and also to formulate preparations for such uses. One of the authorisations even applied to the use of this material in the manufacture of propene.

The wide use of compounds with hexavalent chromium in the industry is also confirmed by statistical data extracted from the notifications submitted by downstream users, published on the ECHA website:

ECHA source: Downstream user notifications of REACH authorised uses.

The ECHA notification process requires certain knowledge of the IT tools, and as such ECHA developed graphic handbooks and videos for this purpose. No fees need to be paid for notification of an authorised use, but do not underestimate the size of the enterprise you enter when opening a REACH-IT account because ECHA reviews the data, particularly for entities with obligations on which fees are imposed. If, despite the existence of the supporting tools, you do not dare to start the notification process on your own, you can make use of the specific consultancy services we can get for you.

1. Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)
2. Czech Act No. 350/2011 Coll., on chemical substances and chemical mixtures

Author: Ing. Jiřina Taitlová