Titanium dioxide – The classification thriller continues

The titanium dioxide case continues to keep regulators busy. Even a special meeting of the responsible REACH regulatory committee on 7 March did not provide a solution to the classification thriller. The European Commission again received strong criticism from a number of Member States for its proposal to classify titanium dioxide in powder form. While some Member States perceive the proposal as too weak, others generally see the classification as such as the wrong way forward. The Commission has therefore postponed the discussion about the entire 14th ATP.

After the European elections the newly formed Commission will reconsider whether to pursue the classification of titanium dioxide. The forthcoming “Lisbonisation” of the procedure will significantly increase its decision-making powers: In the “delegated acts” procedure, which will apply from autumn for classifications under the CLP Regulation, the Commission no longer needs the approval of the Member States, but can in principle decide on its own. The Member States now only have the option of rejecting the proposal in the Council by qualified majority. This requires that at least 16 Member States representing 65% or more of the EU population object to the proposal. A very high hurdle.

However, the new procedure also offers the Commission the opportunity to carry out a comprehensive analysis of the consequences of a classification – in line with the “better regulation agenda”. In 2016, the Junker Commission agreed in an “Interinstitutional Agreement on Better Law-Making” to assess the economic and social consequences of delegated acts if they would have a significant impact. The significant effects of classifying titanium dioxide should have become clear by the latest public consultation in which nearly 500 companies, associations, institutions and individuals participated. More than 95% of the submissions criticised a classification of titanium dioxide as inappropriate and disproportionate. In addition, a number of countries outside the EU had used the WTO notification to criticise the proposal as a trade barrier and to warn against a weakening of the international GHS system.

By postponing the decision, the Commission has also gained time to legally clarify whether CLP allows a classification on the basis of general, non-substance-specific particle effects. Lawyers had expressed considerable doubts in this respect. The Commission’s proposal sets a precedent which would have an impact on the treatment of all powdery substances under CLP. Therfore, a legal clarification is needed.

In the meantime, work is continuing on the European harmonisation of dust limits in the workplace. Although almost all EU member states have introduced limit values for dust emissions at the workplace, some of these vary considerably. For example, a German paint manufacturer has to comply with four times stricter dust limits than its French competitor. This is not acceptable in the medium term in an internal market that aims to ensure a level playing field for all market players.

The Commission, in the form of the Directorate General for Employment, has asked a group of experts to draw up proposals for the harmonisation of dust limits at the workplace. A list of priority substances also includes titanium dioxide. The decision on future limit values will be taken by the Risk Assessment Committee (RAC) of the European Chemicals Agency. Due to the complexity and the considerable economic impact, harmonisation of occupational safety standards is not expected until 2020 at the earliest.

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