Titanium dioxide classification hits rare obstacle at EU Council

Germany, Czech Republic table objections; Council looks to extend deadline

6 November 2019 / Classification, CLP Regulation, CMRs, Europe

The European Commission's controversial plan to classify titanium dioxide as a carcinogen has hit a rare hurdle during the EU legislative process, after two member states tabled objections, according to several EU sources.

Germany and the Czech Republic have raised objections at the Council of Ministers during a two-month scrutiny of the Commission's delegated act, a process involving both the EU Parliament and Council which is currently set to end on 4 December.

The Council is also considering calls from member states for an extension of that deadline to allow other potential objectors to come forward, according to a spokesperson. A decision will be made at a working party meeting, the date of which is not yet set.

Objections during scrutiny phases are rare, given that a qualified majority is needed to revoke a delegated act after the Commission has adopted it. No MEPs raised objections in the EU Parliament, where an absolute majority is necessary to veto a proposal.

The EU executive adopted the Regulation containing a category 2-carcinogen classification of inhalable powder forms of titanium dioxide on 4 October, despite a tide of opposition from industry worldwide, NGOs and some member states.

It forms the 14th adaptation to technical progress (ATP) of the CLP Regulation, which contains amendments for 28 substances, including a carcinogen classification for cobalt metal.

There is no opportunity to amend the delegated act during the scrutiny phase, and blocking it would have an impact on all of the other substances contained in the ATP. Discussions at the Council are considered confidential, however, and Chemical Watch could not formally confirm the member states behind the objections.

Next steps
The working party meeting will decide on whether to extend the objection period until 4 February or declare 'no objection' or 'objection' now, the Council spokesperson said.

The Council's written procedure ended earlier this week. And, for practical reasons, individual objections can no longer be made, the spokesperson added, because "Coreper and Council need to be formally involved and we are bound by their meeting calendars".

If an extension is not granted, then the Council and the Committee of the Permanent Representatives of the Governments of the Member States to the European Union (Coreper) will formally confirm the result by 4 December.

If, as expected, the scrutiny phase is extended, other member states – especially those in Eastern Europe – may decide to fall behind Germany and the Czech Republic and express their opposition, according to some observers.

If a minimum of 16 member states object, the Council then proceeds to find a satisfactory solution that meets their objections, according to EU rules.

However, this scenario is seen as unlikely currently. And if, at the end of the process 'no objection' is declared, the Commission will publish the act immediately, with harmonised classifications kicking in 18 months later.

Industry has blasted the decision to classify titanium dioxide, citing "legal issues" over doing so based on a substance's non-intrinsic secondary particle effects.

It has questioned the robustness of the science, saying that the dust hazard is not specific to the substance, and called for more proportionate measures such as occupational exposure limits (OELs).

Industry has also warned about major consequences for waste and downstream businesses.

Germany, responsible for a quarter of the European market, argued at the Council that classification would set a precedent for many other powdery substances to be classified, including carbon black, according to industry sources.

Meanwhile France, which made the original proposal and since fought together with NGOs for more stringent classification and labelling measures, has not tabled a formal objection so far.

The Titanium Dioxide Manufacturers Association (TDMA), a strong opponent of classification, said it continues to monitor the situation and "make its views known".

It is currently "evaluating the legal aspects" of the proposal, it said, but so far "no decision has been taken on the next steps, if the delegated act goes through."

Titanium dioxide commands a huge market globally. It has widespread uses, mainly in paints, coatings, printing inks and plastics but also in cosmetics, food and feedstuffs, textiles, rubber and pharmaceuticals.