As of January 5, 2021, all EU suppliers of articles containing a REACH Candidate List substance in a concentration above 0,1% must submit a notification to the European Chemicals Agency (“ECHA”).  The new notification requirement – so-called “SCIP notification” – may apply to virtually all types of “objects” supplied in the EU, and is an additional step in the EU’s implementation of its Circular Economy strategy.  It is intended to help ECHA create a database of articles containing particular hazardous substances that will be accessible to waste treatment operators, consumers, and public authorities.

Non-compliance with this new SCIP notification obligation will be subject to economic penalties that will vary per Member State and may be over several million Euro.  Companies that have not already notified ECHA or put in place procedures to ensure compliance by January 5 should work with their suppliers to obtain the necessary notification information and try to benefit from ECHA’s simplified notification procedures.

Below we briefly outline the main features of the new notification requirements.  More details are included in this presentation.

Who Must Notify?

The new notification requirement applies to all “suppliers” of articles containing substances listed in the REACH Candidate List in a concentration above 0,1%.  ECHA has interpreted the concept of “supplier” to include all EU producers, assemblers, importers and distributors of articles.  In effect, the notification requirement applies to all actors in the EU supply chain other than retailers (that are not themselves producers or importers).  All these actors in the supply chain must notify even if their suppliers have already notified.

Entities that are not established in the EU may not notify ECHA.  However, foreign companies may facilitate the notification of their customers in the EU by making use of the “foreign user” functionality in ECHA’s notification IT system.  This functionality allows third-party entities authorized by notifiers to upload information.

What Triggers Notification?

What triggers notification is the supply of articles that contain substances listed in the REACH Candidate List of Substances of Very High Concern for Authorization.

An article is any “object which during production is given a special shape, surface or design which determines its function to a greater degree than does its chemical composition.”  Thus, the new obligation may apply to virtually all materials other than mixtures, such as electronic devices, paper products, textiles, furniture, packaging, vehicles, machinery, and aerospace equipment.  The requirement applies to articles as well as to complex articles or objects that contain them.

Suppliers must notify ECHA if their articles contain a substance listed in the REACH Candidate List of Substances of Very High Concern for Authorization.  The Candidate List currently contains around 209 substances and is updated twice a year.  It may contain Cat. 1A or 1B carcinogens, mutagens, and toxic to reproduction substances (“CMRs”); substances that are persistent, bioaccumulative and toxic (“PBTs”); substances that are very persistent and very bioaccumulative (“vPvBs”); and substances raising an equivalent level of concern (e.g., endocrine disruptors).  In the case of complex articles or objects, the 0,1% concentration threshold must be measured on the basis of the component article and not the whole complex article or object.

ECHA and Member State authorities are likely to interpret the concept of “supply” as any making available of articles on a professional basis for payment or free of charge.  It refers to any making available and not to the first time an article is made available in the EU market.  Thus, the notification requirement may also apply to articles that are imported into the EU before January 5, 2021 if they are supplied thereafter.

What Must Be Notified?

The notification must include a significant amount of information, some of which may be confidential business information.  Among other information, notifiers must specify: (i) the notifier; (ii) name of the article, (iii) primary article identifier; (iv) article category; (v) Candidate List substance; (vi) concentration range of the substance; (vii) material category of the article; (viii) mixture category in which the Candidate List substance is contained; (ix) safe use instructions of the article; and (x) link to a complex object component (if applicable).

Notifiers must make sure not to voluntarily submit any information that is not mandatory and that is confidential business information.  ECHA will publish the information as received, and the database will be available to waste operators, consumers and authorities.  ECHA will only refrain from publishing mandatory or required information that would allow the establishment of links between actors in the same supply chain, such as the link between the notification and its submitter and the specific names or other identifiers of components of complex objects.

Simplified Procedures

As explained above, the notification requirement applies to all actors in the EU supply chain (other than retailers) even if an actor up the chain has already notified.  However, ECHA has created the following tools to simplify the notifications:

  • Grouping to allow notifiers to submit a single notification for identical articles or quasi-identical articles or complex articles.
  • Referencing to allow notifiers to refer in their notifications of complex articles to already submitted notifications of article components.
  • Simplified SCIP Notification to allow notifiers down the supply chain to refer to notifications of the same articles already submitted by another notifier.

Recommendations

ECHA has already received over 50,000 notifications.  Companies that have not already notified or put in place procedures to ensure compliance should assess whether any of the articles they supply in the EU contains Candidate List substances in a concentration above 0,1%.  For example, they can do this by approaching their suppliers and asking them to confirm that all material composition declarations received are in accordance with Article 33(1) of the REACH Regulation and up to date.

Where companies identify any supplied articles containing Candidate List substances in a concentration above 0,1%, they should try to work together with their suppliers to ensure notification and make use of ECHA’s simplified procedures.  Companies should consider concluding agreements with other actors in the supply chain before sharing information and using ECHA’s different simplified notification procedures.