The National Agency for Public Procurement’s requirements on chemicals are intended for use in the procurement of goods and services. The requirements often refer to definitions and legislative clauses, including the EU’s legislation on chemicals, Reach, and CLP regulations.
Environmental labelling has also been used as a basis in this, and has been included where relevant and where it corresponds to a sufficiently large market share.
The most important basis points for the National Agency for Public Procurement’s requirements on chemicals are the:
- Precautionary principle
- Substitution principle
- EU’s chemicals legislation Reach
- Stockholm convention and POPS regulation
- SIN list.
The precautionary principle is often mentioned in discussions on human health and environmental risks, internationally and nationally, and is a well-established EU legal principle.
In the Swedish Environmental Code, it is mentioned in chapter 2, section 3:
”Persons who pursue an activity or take a measure, or intend to do so, shall implement protective measures, comply with restrictions and take any other precautions that are necessary in order to prevent, hinder or combat damage or detriment to human health or the environment as a result of the activity or
measure. For the same reason, the best possible technology shall be used in connection with professional activities. Such precautions shall be taken as soon as there is cause to assume that an activity or measure may cause damage or detriment to human health or the environment.”
The substitution principle (chapter 2, section 4 of the Swedish Environmental Code) calls for:
“Persons who pursue an activity or take a measure, or intend to do so, shall avoid using or selling chemical products or biotechnical organisms that may involve risks to human health or the environment if products or organisms that are assumed to be less dangerous can be used instead. The same requirement shall apply to goods that contain or are treated with a chemical product or a biotechnical organism.”
Regulation (EC) No. 1272/2008 on Classification, Labelling and Packaging of substances and mixtures is a piece of legislation that implements a system for the classification and labelling of chemicals based on the UN’s globally harmonised system (GHS).
CLP governs who is responsible and how to establish and classify the hazards of chemical substances and mixtures, and how to communicate this. The hazard classes and hazard statements that are listed in certain requirements are based on this regulation.
The chemicals field is largely governed by the EU’s chemical legislation Reach (Regulation (EC) No. 1907/2006 on the Registration, Evaluation, Authorisation and restriction of Chemicals).
Reach includes regulations on substances of very high concern, meaning substances that may have serious and irreversible effects on human health and the environment. These substances are included in a candidate list that is updated twice a year and is published by the European Chemicals Agency (Echa).
For chemicals whose use entails unacceptable risks, Reach includes rules on restrictions (annex XVII) and authorisation (annex XIV), which allow for the limitation or ban of the use of a substance.
Reach candidate list
As of the spring of 2015, the candidate list included 161 substances that:
- are carcinogenic, mutagenic or toxic to reproduction, which are known as CMR substances
- are persistent, bioaccumulative and toxic
- give equivalent cause for concern, such as endocrine disruptors.
The identification of substances that may be included in the candidate list is a continuous process, meaning that new substances are regularly included in the list. As of the date on which Echa publishes a new candidate list, the information requirements in article 33 under Reach on goods is applicable.
The information requirement entails that:
- Anyone who produces, imports or sells goods that contain more than 0.1 weight percent of the substance is responsible for providing their customers with such information so that the goods can be handled in a safe and secure manner. This information must at least list the name of the substance. More information on this can be found in the Swedish Chemicals Agency’s guide for suppliers of goods.
- Information must always be given to customers that use the good in their industrial operations or that use the good for professional purposes, such as preschools. An example is the requirement for information on substances on the candidate list.
The substances on the candidate list are not banned for use, but may be subject to authorisation, in which case they are included in appendix XIV. Accordingly, it may be advantageous to phase these substances out of the operation at an early stage.
Several of the procurement requirements among the criteria are based on characteristics that apply to these substances. An example is the requirement on surface treatments for furniture.
Authorisation regulations (Reach annex XIV)
In certain cases, substances with particularly hazardous characteristics cannot be used without authorisation. In the authorisation procedure, safer alternatives must be considered.
If the alternatives are economically or technically reasonable, the hazardous substances are to be replaced. Substances that are subject to authorisation are published in annex XIV of Reach.
When a substance is included in annex XIV an authorisation application must be submitted to Echa before a certain date. Then, after a predetermined end date, the substance must no longer be used or be placed on the market without authorisation from Echa.
Substances that have been included in annex XIV also remain on the candidate list. The responsibility to provide content information that applies to substances on the candidate list continues to apply even after a substance has been included in annex XIV.
Annex XIV does not govern substances in goods that are imported to the EU. This means that imported products that are manufactured outside the EU may contain substances that require authorisation to be used in production in the EU. Accordingly, several of the requirements among the criteria are stipulated on substances that are listed in annex XIV, including certain phthalates.
Restriction regulations (Reach annex XVII)
Substances that result in an unacceptable human health or environmental risk may be banned or have restrictions stipulated on their production, placing on the market and use.
A restriction may allow for specific use of a substance, but ban it at large. An example is cadmium, which is banned for use in goods that are manufactured using PVC, but may be present in recycled PVC in certain construction products.
Annex XVII also governs substances in goods that are imported to the EU.
The Stockholm convention is a global treaty to protect human health and the environment from substances that remain intact in the environment for long periods and become widely distributed geographically.
These so-called POPs (Persistent Organic Pollutants) are persistent organic pollutants that can cause effects such as cancer, reproductive and developmental disorders. Since these hazardous substances are dispersed throughout the world, regulations applicable in Sweden or in the EU are not enough.
The Stockholm convention currently covers 23 substances and 179 countries have ratified the convention. In the EU, the convention and the POPs protocol for the convention on long-range transboundary air pollution (CLRTAP) are implemented in legislation under regulation (EC) No. 850/2004, known as the POPs regulation.
Examples of substances covered by this regulation are, in addition to well-known POPs such as DDT and PCB, certain brominated flame retardants, water-, grease- and dirt-repellent substances such as PFOS, as well as short-chain chlorinated paraffins, which are used as softeners and flame retardants in plastics. SCCPs are regulated in the EU, but not yet globally.
ChemSec is a non-profit organisation that works to rid society of chemicals hazardous to the environment and human health. The organisation has developed a list of hazardous substances that should be phased out, the SIN list (Substitute It Now).
This list is based on the same criteria that are used to include substances on the candidate list under the EU’s chemicals legislation, Reach, but ChemSec is making faster progress since it is not subject to the exhaustive process that EU legislation involves. Accordingly, by the spring of 2015, there were 800 substances on the SIN list, but only 161 substances on the candidate list.
Municipalities that prefer to go further in their requirements than the criteria provide support for and stipulate requirements from the SIN list, for example, are recommended to limit the requirement by imposing requirements on specific parts of the list (such as endocrine disruptors). They must also decide whether the requirement is to apply to substances from the SIN list that is applicable at the time of procurement, or whether the requirement is also to apply to updates that are made to the list, and, if so, for how long after delivery has been made.
If you want to stipulate requirements on substances from the SIN list, you may want to first conduct a market analysis, particularly if the requirement is to be stipulated as a mandatory requirement. The municipality must also ensure that it has the resources and expertise necessary to verify and follow-up on the requirements.