On February 25, 2021, the non-governmental organization ClientEarth released a press statement on the latest developments in the court case in which they challenged the EU commission’s approval of using bis(2-Ethylhexyl) phthalate (DEHP; CAS 117-81-7) in recycled polyvinyl chloride (PVC; CAS 9002-86-2). Advocate General Juliane Kokott supported the NGO’s lawyers who proposed the annulation of the decision by the General Court of the EU that rejected the review of DEHP authorization. DEHP has been identified under REACH as a substance of very high concern, intended for phase-out. Uses of DEHP in products regulated under REACH need to be authorized.

In 2016, the EU Commission (EC) established a regulation under REACH that approved the use of recycled plastics containing DEHP such as PVC. This decision has been criticized widely by NGOs, as well as, the European Parliament (FPF reported) for disregarding the endocrine-disrupting effects of DEHP. Nonetheless, the EC refused to review its decision, thus, ClientEarth brought the case to the General Court of the EU, which also rejected the claims.

On February 25, 2021, in the second instance, Juliane Kokott, Advocate General of the Court of Justice in the EU, agreed that the EC committee had performed an inadequate balancing of socio-economic costs and health risks. At the time of the assessment, the endocrine-disrupting properties of DEHP had already been known and therefore should have been taken into account. Therefore, Advocate General Kokott proposed the Court of Justice should “annul the Commission’s negative review decision”. The final decision of the court will be announced by December 2021.

Apolline Roger, a lawyer at ClientEarth, welcomed this outcome and hopes the court will follow Kokotts recommendations. But she also highlighted the inadequacy of REACH for managing any recycled material containing hazardous chemical contaminants, as the framework had originally been developed only to regulate the intentional use of harmful chemicals and does not have means for dealing with legacy contaminants. She added that the REACH authorization process, as it is set up today, lacks the necessary tools needed to handle this type of situation, including, full life-cycle evaluation, comparison of end-of-life solutions, as well as systems to ensure the traceability of recycled materials and products.

“We need a circular economy that is healthy – not one that allows toxic substances to creep in. We call on the Commission and the Member States to find a better long-term solution than using REACH authorizations to paper over the gaps between chemical and waste regulation, to maintain trust in recycled materials.”

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ClientEarch (February 25, 2021). “EU Commission illegally allowed use of toxic chemical DEHP in recycled plastic – Advocate General.

EU Court of Justice (February 25, 2021). “In the opinion of Advocate General Juliane Kokott, the Commission’s decisionrefusing to review the authorisation of the plasticiser DEHP (bis(2-ethylhexyl) phthalate) should be annulled.