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REACH

Ograniczenia

A. Kwestie ogólne

Does the importer of a mixture have any obligations concerning potential impurities present in the mixture, where the impurity is a substance listed in Annex XVII?

The obligations of the importer of the mixture depend on the interpretation of each specific entry in Annex XVII to REACH for the substance concerned, taking account of the wording, the context and the purpose of the restriction in question.

For instance, if a substance were completely banned, then it could not be placed on the market, not even as an impurity in a substance in an imported mixture. On the other hand, some Annex XVII entries specify limits above which a substance cannot be placed on the market. This limit may not be exceeded, no matter what is the source of the substance in the mixture. However, this can only be determined on a case-by-case basis depending on the substance, the restriction and the concentration of the substance as an impurity in the imported mixture.

It should be noted that the impurity may be permissible at any concentration if the use of the imported mixture is not covered in the ‘conditions of restriction' listed in Annex XVII for the substance.

When a specific Annex XVII entry (e.g. entry 56 MDI) specifies the requirement for the package to contain protective gloves in order for the mixture to be placed on the market, is it possible to attach the protective gloves to the package, if it cannot contain them?

In special cases where, due to the size or shape of the packaging, it is technically not possible to include the protective gloves inside the packaging, it is considered to be sufficient that the gloves are fixed tightly to the packaging in a manner that they cannot be unintentionally removed during handling and transport. The gloves must not obstruct the label and the removal of the gloves must not destroy the label. In addition, both the packaging containing the mixture and the protective gloves must be placed on the market as a single unit, which explicitly signals to the consumer that the mixture may only be used with the protective gloves .

What is the definition of "toys", in the context of restrictions in Annex XVII to REACH?
A number of Annex XVII entries (Entries 5, 31, 43, 50 , 51 and 52) specifically refer to toys. The REACH Regulation does not  define "toys". Toys are defined by Directive 2009/48/EC (hereinafter referred to as the Toys Safety Directive-TSD).
 
Article 2(1) of the TSD states: "This directive shall apply to products designed or intended, whether or not exclusively, for use in play by children under 14 years of age (hereinafter referred to as toys)".
Annex I to the TSD contains a more detailed list of products that are not considered as toys within the meaning of the Directive. Article 3 of the TSD defines certain types of toys such as "functional toy", "aquatic toy", "chemical toy" and "activity toy". Furthermore, Article 2(2) of the TSD explicitly mentions that the TSD shall not apply to the following toys: (a) playground equipment intended for public use; (b) automatic playing machines, whether coin operated or not, intended for public use; (c) toy vehicles equipped with combustion engines; (d) toy steam engines; and (e) slings and catapults. It is considered that if the TSD definition of "toys" is used in Annex XVII to REACH, these exemptions will automatically form part of that definition.
 
The European Commission services have prepared an explanatory guidance document on the TSD, (http://ec.europa.eu/enterprise/sectors/toys/files/tsd-guidance/tsd_rev_1-6_explanatory_guidance_document_en.pdf) providing clarifications about its scope and definitions of certain categories of toys. Overall, the definition of toys in the TSD should be used to determine what we mean by "toys" for the purposes of restrictions in Annex XVII to REACH. Concerning toys exempted from the scope of the TSD (Article 2(2) of the TSD) these should also normally not be considered as "toys" for the purpose of the relevant REACH restrictions. In certain cases, it may be necessary to describe a class of toys to be covered by a restriction by reference to specific properties of the item.                                   
What is the definition of "childcare articles", in the context of restrictions in Annex XVII to REACH?
A definition of "childcare articles" was inserted by the 22nd amendment of Council Directive 76/769/EEC, (which was repealed by REACH, Annex XVII) via the Directive 2005/84/EC of the European Parliament and of the Council. Directive 76/769/EEC was amended so that the following definition for childcare articles was added in its Article 1(3)c: "childcare article" means any product intended to facilitate sleep, relaxation, hygiene, the feeding of children or sucking on the part of children. Hence the intention of the legislator was to use this definition for the purpose of all the restriction provisions and thereby this to be applicable for the entire Directive 76/769/EEC. Therefore, the same definition appears in entries 51 and 52 of Annex XVII, providing an indication of what should be generally considered as a "childcare article" in the context of all Annex XVII (to REACH) provisions. 
 
What is the meaning of the expression "placing/placed on the market for the first time" in the context of entries 3(7), 31(2)(b), 58(1) and 59(1)(b) of Annex XVII to REACH?
Article 3(12) of REACH defines "placing on the market" as supplying or making available, whether in return for payment or free of charge, to a third party. Import is deemed to be placing on the market.
 
Placing on the market for the first time limits the scope of the restriction to the first natural or legal person who supplies or makes available substances, mixtures or articles on the market in the EU. The first placing on the market in the EU will either be by the manufacturer or the importer of the substance, mixture or article concerned.
 
In some cases a restriction entry in Annex XVII refers to specific Directives/Regulations when describing the inclusion or exception of some substances or product categories from the entry. If this Directive/Regulation is repealed or modified, is the new/amended legislation applicable to the restriction?
In general, the answer is yes. However, it should be assessed on a case-by-case basis whether the new legal act replaces the repealed one for the purpose of the REACH restriction, taking into account, for example, the objective of the reference. 
The new legal act may explicitly state that references to the repealed act must be construed as references to the new legal act (e.g., Article 139 of REACH).
For example:
  • Entry 19 (paragraph 4) exempts certain uses of arsenic compounds for wood preservation if they are authorised in accordance with Directive 98/8/EC. This Directive was replaced by Regulation (EU) 528/2012, which explicitly states that references to the repealed Directive must be interpreted as reference to the new regulation (Article 96).
  • Entry 45 (paragraph 3) exempts electrical and electronic equipment within the scope of Directive 2002/95/EC from the restriction of diphenylether, octabromo, derivative. This Directive was replaced by Directive 2011/65/EU, which explicitly states that references to the repealed Directive must be interpreted as reference to the new directive (Article 26).
  • Entry 50 (paragraph 3) defines tyres covered by the PAH restriction as tyres for vehicles covered by three directives, including Directive 2002/24/EC. This Directive was replaced by Regulation (EU) 168/2013, which expressly states that references to the repealed Directive must be interpreted as reference to the new regulation (Article 81).
As regards the amendment of an act referred to in a restriction, references in acts of Union law are usually ‘dynamic’, so that the reference is taken to be to the latest version of the act referred to. However, less commonly, a reference may expressly refer to an act as it stands on a specific date; this is known as a ‘static’ reference.
What information on restrictions is needed on the safety data sheet and when does the safety data sheet need to be updated due to restrictions?

Article 31(6) of the REACH Regulation provides that the safety data sheet (SDS) shall contain a Section 15 entitled ‘regulatory information’. Annex II to REACH provides requirements for the compilation of the SDS. Section 15(1) specifically mentions that, if the substance or mixture covered by the SDS is the subject of specific provisions in relation to the protection of human health or the environment at Union level (e.g. restrictions under Title VIII), these provisions must be mentioned, unless this information is already mentioned in other parts of the SDS. Thus, all restriction entries applicable to the specific substance or mixture covered by the SDS need to be indicated therein. As an example, SDSs including carcinogenic, mutagenic or toxic to reproduction substances (as such or in a mixture) listed in appendices 1 to 6 to REACH, need to refer to entries 28, 29 or 30 of Annex XVII. If another specific restriction exists for these substances, this needs to be mentioned as well in the SDS.

Moreover, Article 31(9) of the REACH Regulation requires suppliers to update the SDS without delay once a restriction has been imposed. In Section 16 (other information), a clear indication of where changes to the previous version have been made needs to be included, unless such indication is given elsewhere in the safety data sheet, with an explanation of the changes.

What is regarded as scientific research and development, which is exempted for restrictions? For example, does research by students at universities fall under this?
Article 3(23) of the REACH Regulation defines scientific research and development as “any scientific experimentation, analysis or chemical research carried out under controlled conditions in a volume less than one tonne per year”.
To further clarify the exemption (within Article 67(1) of the REACH Regulation, manufacture, placing on the market or use of a substance in scientific research and development (SRD) is exempted for restrictions), note that under the authorisation process the following Q&As (concerning the exemption in Article 56 for the use of Annex XIV substances in scientific research and development) has been provided. The same approach can be broadly considered as applicable to restrictions.
  • Q&A 1153 states that sampling for further analysis is not exempted and thus not regarded as scientific research and development. However, “activities considered to form part of the use of the sample in performing analytical activities” fall within the exemption. 
  • Q&A 1030 explains that the uses of a substance upstream preceding an exempted end-use in scientific research and development are also exempted in quantities of the substance ending up in SRD (i.e. under 1 t/y per user) subject to certain conditions. 
  • Q&A 585 explains that the exemption from authorisation also applies to the use of a substance in analytical activities such as monitoring and quality control under certain conditions. This exemption applies irrespective of where the analysis is performed i.e. on-site or off-site facilities, but does not cover sampling activities.
Scientific experimentation, analysis or chemical research in universities and secondary schools, conducted by students, may fall within the exemption, if they are carried out under controlled conditions, in a volume less than one tonne per year. In other words, if the volume of a substance used in scientific experimentation, analysis or chemical research is less than one tonne per year and it is used under controlled conditions, restrictions do not apply to that use. 
Which restrictions under REACH concern textiles and leather articles?

Many entries in the Restriction List (Annex XVII) cover articles. Such entries are, for instance, entries 50 - 52, 61 and 63. These may address types of textiles and leather articles, even if these are not explicitly mentioned.
The following entries in the Restriction List (Annex XVII) are specific to textiles: 
Entry 4 ((2,3 dibromopropyl) phosphate, CAS No 126-72-7);
Entry 7 (Tris(aziridinyl)phosphinoxide, CAS No 545-55-1; EC No 208-892-5) and 
Entry 8 (Polybromobiphenyls; Polybrominated biphenyls (PBB), CAS No 59536-65-1).
These entries state that these substances “Shall not be used in textile articles, such as garments, undergarments and linen, intended to come into contact with the skin.” 
The following entries in the Restriction List (Annex XVII) restrict substances in relation to textiles and/or leather articles:
Entry 18, restriction on mercury compounds in the impregnation of heavy-duty industrial textiles and yarn intended for their manufacture;
Entry 20 (paragraph 6), restriction on dioctyltin (DOT) compounds in textile articles intended to come into contact with the skin;
Entry 23 (paragraph 6), restriction on cadmium and its compounds in textiles and clothing; 
Entry 43, restriction on azocolourants and azodyes in textile and leather articles which may come into direct and prolonged contact with the human skin or oral cavity (indicative list is provided);
Entry 46 (paragraph 3) restriction on nonylphenol and nonylphenol ethoxylates in textiles and leather processing (with some exceptions);
Entry 46a, restriction on nonylphenol ethoxylates in textile articles which can reasonably be expected to be washed in water during their normal lifecycle, and
Entry 47 (paragraphs 5-7), restriction on chromium VI compounds in leather articles coming into contact with the skin.

Which restrictions under REACH concern electrical and electronic equipment?
Many entries in the Restriction List (Annex XVII) cover specific articles or all articles without explicitly referring to electrical and electronic equipment. These are, for example, entries 18a, 20, 23-26, 50-52. They may apply to electrical and electronic equipment, even if these are not explicitly mentioned (or derogated) in the entry.
The following entries of the Restriction List (Annex XVII) specifically include a derogation for electrical and electronic equipment: 
Entry 45 (paragraph 3) provides a derogation from the restriction on diphenylether, octabromo derivative (C12H2Br8O) for electrical and electronic equipment within the scope of Directive 2002/95/EC, which has been replaced by Directive 2011/65/EU (on the restriction of the use of certain hazardous substances in electrical and electronic equipment),  and
Entry 63 (paragraph 8) excludes articles within the scope of Directive 2011/65/EU from the restriction on lead and its compounds in articles supplied to the general public.
Which restrictions under REACH concern paints or paint strippers?
Many entries in the Restriction List (Annex XVII) cover substances and mixtures in general, without specifying product types. They may thus also apply to paints/paint strippers, even if these are not explicitly mentioned in the entry.
In addition, the following entries in the Restriction List (Annex XVII) explicitly restrict the placing on the market of paints and/or paint strippers: 
Entry 16, restriction on certain lead carbonates in substances or mixtures intended for use as paint;
Entry 17, restriction on certain lead sulphates in substances or mixtures intended for use as paint;
Entry 20, restriction of organostannic compounds acting as biocide in free association paint;
Entry 20 (paragraph 5), restriction on dibutyltin (DBT) compounds in paints and coatings; 
Entry 23 (paragraph 2), restriction on cadmium and its compounds in paints with codes [3208] and [3209] and in painted articles; 
Entries 28-30 (paragraph 1), restriction on CMRs as substances, as constituents of other substances or in mixtures (including paints), for supply to the general public; (paragraph 2) derogation for artists’ paints covered by Regulation (EC) No 1272/2008;
Entry 48, restriction on toluene (CAS No 108-88-3; EC No 203-625-9) in spray paints intended for supply to the general public; 
Entry 54, restriction on (2-(2-methoxyethoxy)ethanol (DEGME) (CAS No 111-77-3; EC No 203-906-6) for supply to the general public, as a constituent of paints and paint strippers;
Entry 55, restriction on 2-(2-butoxyethoxy)ethanol (DEGBE) (CAS No 112-34-5; EC No 203-961-6) for supply to the general public, as a constituent of paints and paint strippers and in spray paints and
Entry 59, restriction on dichloromethane in paint strippers under certain conditions.
Entry 03 of Annex XVII to REACH - Oil lamps

Which type of oil lamps are considered as decorative within the context of Entry 3 of Annex XVII?
An indicative description of "decorative oil lamps" is provided by the European Standard EN 14059 (which specifies requirements and test methods for decorative oil lamps) (section 3.6): 
Oil lamp for decorative purposes is an oil lamp for interior or exterior use (e.g. in garden torches) appealing by its design and or the light atmosphere it creates. 
 
Entry 16-17 of Annex XVII to REACH-lead compounds in paints

What is the definition of paints in the context of entries 16 and 17 of Annex XVII? In particular, are children's paint sets, and also other stationery-type paints such as artist paints and do-it-yourself (DIY) decorations for t-shirts also covered?

The REACH Regulation does not provide a specific definition for paints.
According to a general meaning, paint is a mixture, usually of a liquid with a solid pigment. Furthermore, Commission Decision 2009/544/EC (establishing the ecological criteria for the EU Ecolabel to indoor paints and varnishes) provides  the following definition: 'Paint' means a pigmented coating material, in liquid or in paste or powder form, which when applied to a substrate, forms an opaque film having protective, decorative or specific technical properties.
The abovementioned definitions provide an indication of what could be generally considered as a paint in the context of entries 16-17 of Annex XVII (to REACH) provisions.

It should be noted that the restrictions in entries 16-17 of Annex XVII only allow Member States to permit the use of paints containing the restricted substances for the restoration and maintenance of works of art and historic buildings and their interiors. Thus children's paint sets and other stationery-type paints such as artist paints and do-it-yourself (DIY) decorations for t-shirts must not contain the restricted substances.

Concerning children's paint sets, these may also be covered by the Toys Directive (Directive 2009/48/EC on the safety of Toys), which lays down limits for the presence of lead in toys.

Entry 18(a) of Annex XVII to REACH - Mercury

Are the repairing and maintenance activities covered by the restriction in Entry 18(a) of Annex XVII?
Fever thermometers and other measuring devices for sale to the general public in use in the European Union before the 3 April 2009: The prohibition concerns the placing on the market of fever thermometers and other measuring devices for sale to the general public after the 3 April 2009.
Pursuant to paragraph 2, thermometers as well as other measuring devices for sale to the general public in use in the European Union before the 3 April 2009 are exempted from the prohibition. These instruments containing mercury which were in use in the European Union before the 3 April 2009 can be placed on the second hand market except in the territories of Member States which decided to regulate theses existing instruments. Repairing and maintenance activities for these existing instruments are excluded from the scope of the restriction. Nevertheless, in the case of repairing and maintenance activities performed on these devices, new measuring devices containing mercury shall not be used as this would be considered making available new measuring devices to the general public.
How should derogation in entry 18(a) of Annex XVII related to Antique Barometers be interpreted?
Under 18(a) antiques measuring devices are defined as more than 50 years old on 3 October 2007.
Under paragraph 3 antique measuring devices are exempted from the restriction. Repairing and maintenance activities for these antique measuring devices are also exempted for the restriction.
The intention of the legislator in granting an exemption for antique measuring devices is that their trade should continue (Directive 2007/51/EC, Recital No 4) due to their cultural and/or historical value. Therefore these instruments should continue to be serviced in order to keep their cultural and/or historical value.
Antique measuring devices such as barometers containing two columns of mercury which one consists of a thermometer are considered falling within the derogation of paragraph 3 and therefore they should continue to be serviced. The columns can be repaired or replaced if these activities are part of the maintenance and repair services and preserve the cultural and/or historical value of the instrument.
Professionals may buy measuring devices containing mercury if they are destined for the repair and maintenance activities of antique measuring devices.
Is there any definition for measuring devices in the context of entry 18(a) of Annex XVII?

The REACH Regulation does not provide a definition of measuring devices (often referred to as measuring instruments). However, in the context of entry 18(a), it has to be noted that:

  1. The restriction provision in paragraph 1 of entry 18(a) covers those measuring devices that are intended for sale to the general public and provides an indicative list of these (thermometers, manometers, barometers, sphygmomanometers etc.)
  2. Furthermore paragraphs 5 and 7 provide exhaustive lists of mercury-containing measuring devices intended for industrial and professional uses which have not been allowed to be placed on the market after 10 April 2014 (barometers; hygrometers; manometers; sphygmomanometers; strain gauges to be used with plethysmographs; tensiometers; thermometers and other non-electrical thermometric application; mercury pycnometers; mercury metering devices for determination of the softening point; mercury triple point cells other than those used for the calibration of platinum resistance thermometers).

For the purposes of Directive 2004/22/EC on measuring instruments, ‘measuring instrument' means any device or system with a measurement function that is covered by Articles 1 and 3. According to the European Standardisation organisation-CEN, "measuring instruments allow for testing the accuracy and calibration of measuring devices (e.g. water meters, gas meters, electricity meters, etc.)". (http://www.cencenelec.eu/standards/sectors/mid/pages/default.aspx)

The abovementioned definitions provide an indication of what could generally be considered as a measuring device in the context of entry 18(a) of Annex XVII to REACH provisions.

Entry 19 of Annex XVII to REACH - Arsenic Compounds

Are imports of CCA treated wood from outside the European Union banned under Entry 19 of Annex XVII?
Under Entry 19 of Annex XVII to REACH, CCA type C cannot be used to treat wood in the EU due to the fact that it has not been authorised under Directive 98/8/EC. A request for authorisation could, however, be made in the future in line with the requirements of Directive 98/8/EC.
Concerning wood newly treated with CCA type C and imported from third countries:
· paragraph 4 a) authorises only the treatment of wood with CCA type C if this biocidal product is authorised under Directive 98/8/EC.
· under paragraph 4 b) it is stated that "Wood treated with CCA solutions in accordance with point a) may …."
This implies that all wood that is placed on the market in the EU must conform to the requirements of paragraph 4 a).
Therefore wood newly treated with CCA type C may only be placed on the EU market if this biocidal product used for treatment is authorised under Directive 98/8/EC.
Whilst the Directive does not impose general obligations on wood treatment installations outside the EU, this requirement is valid for any manufacturer, distributor, or importer placing wood on the EU market whether this wood is manufactured in the EU or manufactured outside
the EU and imported. Obviously the requirement does not apply to wood treatment installations outside the EU producing wood for marketing outside the EU.
In summary since 30 June 2007, it is prohibited to place on the market and to import wood newly treated with CCA type C, until such time as a biocidal product containing this active substance is authorised in line with all the requirements of Directive 98/8/EC.
Under Entry 19, paragraph 4b) of Annex XVII there is a list of applications for which wood treated with CCA type C can be used. May treated wood be used for other applications, such as railway sleepers other than underground railway sleepers?

Paragraph 4b) of Annex XVII to REACH concerning arsenic compounds provides for a list of applications for which wood treated with CCA may be used. This is not a list of examples of possible uses but an exhaustive list of authorised applications. It flows both from the actual wording of those provisions and from their objective that the derogation provided for in paragraph 4 must necessarily be subject to a strict interpretation, as confirmed by the Court of Justice (case C-358/11, pp. 40-43).

Consequently, wood treated with CCA cannot be used for other applications than the ones listed in paragraph 4 b). Wood treated with CCA can, therefore, not be used for railway sleepers installed above ground.

Entry 20 of the Annex XVII to REACH - Organostannic compounds

What types of organotin compounds are covered by entry 20 of Annex XVII of REACH "organostannic compounds"?

Organostannic compounds covered by entry 20 in Annex XVII to REACH, must contain a carbon-tin bond. Substances like tin salts or organotin compounds, for which tin is bound to an atom other than carbon (for example hexanoic acid, 2-ethyl-, tin(2+) salt (CAS-No. 301-10-0)) are not covered by entry 20 in Annex XVII to REACH.

What is the meaning of the expression "already in use" in the context of the entry 20 of Annex XVII to REACH?
Paragraphs 4(b), 5(b) and 6(b) of entry 20 of Annex XVII to REACH, state that articles (and mixtures in the case of article 5(b)) not complying with point (a) of the paragraph shall not be placed on the market after [a certain date] ‘except for articles that were already in use in the Union before that date'". 
 
The phrase ‘already in use' means in the possession of the end-user. Therefore, the derogations apply only to articles which reached end-users before the dates referred to in paragraphs 4(b), 5(b) and 6(b) of the entry. Those (second-hand) articles may continue to be traded after the dates on which the respective bans came into force. All articles still held by distributors, or in the storage facilities of importers or manufacturers on the dates when the bans came into force, should have been withdrawn from the distribution chain.
(a) Do toys fall within the scope of the dioctyltin (DOT) compounds restrictions of entry 20 (paragraph 6)? (b) Can toys benefit from the derogations for organotins in entry 20 of the Restriction List (Annex XVII)? (c) Would a paint coating on a toy that contains dibutyltin (DBT) as a biocide and not as a catalyst fall within the derogation?

(a) Yes, they do. Entry 20 in the Restriction List (Annex XVII) to REACH imposes DOT compounds restrictions for childcare articles, which are not toys. The REACH Regulation does not contain a definition of toys. The definition of toys in Directive 2009/48/EC on the Safety of Toys is illustrative in determining what should be considered as a “toy” in the context of this restriction (see Q&A 0982).

However, paragraph 6(a) of entry 20 restricts DOT compounds in textile toys as in any other textile article intended to come into contact with the skin. Furthermore, organic tin (including DOT) in toys is restricted by paragraph 13 of Part III (Chemical Properties) of Annex II to Directive 2009/48/EC on the safety of toys, which specifies maximum migration limits.

(b) and (c)

In addition to derogation in paragraph 5(d), the other derogations currently applicable to TBT, DBT and DOT compounds in articles relate to the continued placing on the market of articles that were already in use in the EU before the 1 July 2010 for TBT (paragraph 4(b), before the 1 January 2012 (paragraph 5(b)) for DBT and before the 1 January 2012 for DOT (paragraph 6(b)).

Does the restriction in entry 20 (organostannic compounds) of Annex XVII to REACH apply to packaging?

Yes. Packaging can be considered as an article (or a product composed of different articles) in its own right. More information can be found in the ECHA guidance on requirements for substances in articles available at https://echa.europa.eu/guidance-documents/guidance-on-reach (in particular in chapter 2). 

Therefore, with regard to entry 20, packaging should comply with the restrictions for tri-substituted (TBT, TPT) and dibutyltin (DBT) compounds. The restriction of dioctyltin compounds (DOT) which applies only to certain listed articles for the general public, applies to textile packaging.

Entry 23 of Annex XVII to REACH - Cadmium and its compounds

According to paragraph 10 of entry 23 of Annex XVII to REACH cadmium shall not be used or placed on the market if the concentration is equal to or greater than 0,01% by weight of the metal in metal parts of jewellery. Does this concentration threshold apply to each metal component of an item of jewellery or to the jewellery item as a whole?

With reference to paragraph 10 of the Annex to Commission Regulation (EU) 494/2011 amending entry 23 of Annex XVII of the REACH Regulation (cadmium) the concentration threshold of cadmium applies in each metal part of jewellery. The wording used by the legislator, i.e. "metal parts of the jewellery and imitation jewellery" implies that each metal part is relevant; therefore in order to determine if the restriction applies the calculation of the concentration in this case is to be done for each metal part. Therefore, if there are several metal layers as coatings on the surface of an inner (metallic) part of the jewellery these should be regarded as integral part of the metal part and the concentration limit of 0,01% is calculated for this whole metal part. In case the inner part is not metal, but the coating is made of metal layers, this coating is regarded as one metal part. If the jewellery article contains several metal parts, each of them should comply with the concentration limit.

Is it allowed to continue the sale/placing on the market of jewelry articles containing more than 0.01% of Cadmium, manufactured and already placed on the market (e.g. sold by the manufacturer to the distributor) before the 10 December 2011 following the entry into force of the new restriction according to Entry 23 of Annex XVII, paragraphs 10 and 11?

The prohibition of the placing on the market of jewellery and imitation jewellery articles containing cadmium includes sales from the manufacturers to distributors and from distributors to retailers, as well as imports. However, Commission Regulation (EU) 494/2011 contains derogation for articles that were placed on the market before 10 December 2011 (for the date see corrigendum published in OJ L 136/105). This means that jewellery and imitation jewellery articles placed on the market for the first time before 10 December 2011 do not need to comply with the prohibition thus they can be sold following entry into force of the new restriction for example to a retailer or on the second-hand market.

Which uses of brazing fillers containing cadmium can be regarded as uses for safety reasons (derogation in paragraph 9 of entry 23 of Annex XVII to REACH)?

Paragraph 8 of entry 23 of Annex XVII to the REACH Regulation states that cadmium and its compounds shall not be used in brazing fillers in a concentration equal to or greater than 0,01 % by weight. In addition, brazing fillers shall not be placed on the market if the concentration of cadmium (expressed as Cd metal) is equal to or greater than 0,01 % by weight. The paragraph also states that brazing shall mean a joining technique using alloys and undertaken at a temperature above 450°C. In accordance with the following paragraph 9, by way of derogation paragraph 8 shall not apply to brazing fillers used in defence and aerospace applications nor to brazing fillers used for safety reasons.

The safety aspect in relation to this derogation is if the use of cadmium containing brazing filler may prevent accidents causing human suffering or environmental pollution.

For the enforcement purposes examples of applications are given. It can be considered that the derogation on uses of cadmium containing brazing fillers for safety reasons in paragraph 9 of entry 23 covers the current uses, such as:

  1. Brazing fillers used in turbine wheels in power plant technology in temperature below 650°C.

    Turbine wheels in power plant technology are parts of speed drivers for gas compressors and boiler feed pumps, where rotational speed is approximately from 1000 revolutions per minute (rpm) up to 20 000 rpm. Cadmium containing brazing fillers are needed as they can be used below 650 °C without decreasing the strength of the parent material (base metal).  Cadmium-free brazing fillers require higher temperatures which causes the weakening of the parent material.  Weakening of the parent material could lead to the breakdown of the turbine wheel. Due to high rotational speed the parts and pieces of shrapnel may cause injuries to workers and others in the vicinity of the wheel.  The breakdown of the turbine wheel may result also in a complete shutdown of the power plant, the compressor station of a gas pipeline, or of a refinery.
     
  2. Brazing fillers used in pipes and tubes where acetylene is transferred in high pressure (1.5 – 17 bar).

    Cadmium containing brazing fillers are needed in the joining process for pipes and tubes, where acetylene is transferred in order to avoid formation of explosive substances.  Acetylene forms explosive substances with copper and silver as well as other materials (e.g. formation of copper acetylide and silver acetylide).  Cadmium reduces the overall percentage of copper and silver in the brazing fillers to the level where formation of explosive substances does not exist. Another reason to use cadmium in brazing fillers for this application is that cadmium facilitates the capillary action and solder penetration ensuring a good quality joint with high integrity for pipes and tubes where acetylene is transferred in high pressure (1.5-17 bar). Release of acetylene from pipes and tubes may as well cause serious risk, as acetylene is extremely flammable gas and explosive with and without contact with air.

Other applications that would like to benefit from the derogation need to show the similar kind of safety aspects as described above.

Such considerations should take into account the availability on the market of cadmium-free brazing fillers which can address the safety aspects of the specific application of the brazing fillers in an equivalent manner.

See also ECHA´s report "The use of brazing fillers containing cadmium for safety reasons" [PDF].

Which types of articles coloured with mixtures containing cadmium can be regarded as using cadmium for safety reasons (derogation in paragraph 3 of entry 23 of Annex XVII to REACH)?

Paragraph 1 of entry 23 of Annex XVII to the REACH Regulation provides a restriction on cadmium and its compounds in mixtures and articles produced from certain synthetic organic materials (plastic materials) and paragraph 2 provides a restriction on cadmium and its compounds in paints (Tariff codes 3208 and 3209). The following paragraph 3 states that by way of derogation the restrictions in paragraphs 1 and 2 do not apply to articles coloured with mixtures containing cadmium for safety reasons.

There are two safety aspects in relation to this derogation. The first relates to the use of a specific colour or pigment with certain properties which is necessary to prevent accidents. The second relates to the use of a specific colour or pigment with certain properties in safety equipment.

For the enforcement purposes example of applications are given. Based on above, it can be considered that the derogation in paragraph 3 of entry 23 covers current applications of articles such as:

  1. Coloured wire insulation and cable jackets used in aircraft electrical and control systems for the purpose of fire detection and extinguishing systems, flight control systems or during flight tests.

    The wire and cable connections are often used in in a high temperature application (greater than 150ºC ambient temperature). Cadmium pigments are used to keep the colour from changing or fading over time in the high temperature. Changing established colour conventions could introduce a significant risk of maintenance errors, which may lead to a risk of passengers.
     
  2. Outdoor safety equipment, such as:
    • parts of rescue boats for ships (e.g. safety belts, water pockets of life rafts, canopies) and
    • parts of safety equipment for outdoor applications (e.g. seats, reels and diverse technical parts).
    Outdoor safety applications are applications used typically in outdoor activities in areas where visible colours are needed for rescue or orienteering purposes in case of emergency situations. Cadmium pigments provide highly visible colour contrast with its surroundings (e.g. in rescue situations) and where durability of the colour for the ambient environment (e.g. weather resistance, light fastness, heat resistance and chroma) is needed.

The other applications that would like to benefit from the derogation need to show the similar kind of safety aspects than described above.

Such considerations should take into account the availability on the market of alternative substances which can address the safety aspects of the specific application in an equivalent manner.

See also ECHA´s report "The use of cadmium and its compounds in articles coloured for safety reasons" [PDF].

What parts of plastic coated copper beads (CCB) used in jewellery should comply with the cadmium restriction entry 23?

Entry 23 (paragraph 10 (i)) of Annex XVII to the REACH Regulation states that cadmium and its compounds must not be used or placed on the market if the concentration of cadmium is equal to or greater than 0,01 % by weight of the metal in metal beads and other metal components for jewellery making (see Q&A, 158). In addition, it should be noted that articles produced from plastic material referred to in paragraph 1 of the entry must not be placed on the market if the concentration of cadmium is equal to or greater than 0.01 % by weight of the plastic material.

Thus, in the case of plastic coated metal beads (CCB beads), both the plastic material and the metallic part of the bead need to comply with entry 23 (cadmium restriction).

Please also note that if the article is painted, then paragraph 2 will also apply to this article.

Do paragraphs 5 and 6 of entry 23 (cadmium and its compounds) cover unplated metal parts?
No. They cover only plated metal parts. Paragraphs 5 and 6 of entry 23 prohibit the use of cadmium for “cadmium plating” (defined as a deposit or coating on a metallic surface with metallic cadmium) metallic articles used in specified sectors/applications. The placing on the market of cadmium-plated articles used in those sectors/applications and of articles manufactured in some of those sectors/applications is also prohibited. The latter reference to “articles manufactured” must be taken to mean articles that have been cadmium plated, since paragraphs 5 and 6 relate only to “cadmium plating”. Accordingly, Paragraphs 5 and 6 do not cover articles with metal parts containing cadmium unless these parts are plated with cadmium. 
Note that metallic articles containing cadmium may be covered under other EU legislation. For example, (1) electrical and electronic equipment falls under Directive 2011/65/EU on the Restriction of the use of certain Hazardous Substances and must comply as well with the maximum concentration limits for cadmium set in that Directive and (2) toys are covered under Directive 2009/48/EC on the Safety of Toys.
Is ink covered by entry 23 of Annex XVII to REACH, concerning cadmium and its compounds?
No. Ink is not included in the TARIC codes [3208] [3209] which define the scope of paragraph 2 of entry 23. 
Entry 27 of Annex XVII to REACH - Nickel and its compounds

Are mobile telephones covered by the restriction set in Entry 27 of Annex XVII on nickel?

Entry 27 of Annex XVII to REACH states that nickel may not be used "in articles intended to come into direct and prolonged contact with the skin, if the rate of nickel release from the parts of these articles coming into direct and prolonged contact with the skin is greater than 0.5 Jg/cm²/week". The aim of this restriction to protect consumers against nickel allergy which may be caused by prolonged contact of the skin with nickel-releasing articles that come into direct and prolonged contact with the skin such as jewellery, buttons, tighteners, zips and rivets in items of clothing. It has emerged that some mobile telephones contain nickel in surface material and that consumers are at risk of developing eczema through skin contact with the mobile telephone. As mobile telephones are clearly intended to come into direct contact with the skin, and as they are used on a daily basis often for prolonged periods of time, it is considered that mobile telephones fulfil the condition of "direct and prolonged contact with the skin". Therefore mobile telephones are covered by the restriction and should comply with the conditions set in Entry 27 of Annex XVII to REACH.

How to clarify the "prolonged contact with the skin" in relation to the nickel restriction entry 27?

Prolonged contact with the skin is defined as contact with the skin to articles containing nickel of potentially more than

  • 10 minutes on three or more occasions within two weeks, or
  • 30 minutes on one or more occasions within two weeks.

The skin contact time of 10 minutes applies when there are three or more occasions of skin contacts within a two-week time period. The skin contact time of 30 minutes applies when there is at least one occasion within a two-week time period.

Details

 

 

Entry 28 to 30 of Annex XVII to REACH - CMR substances

Are substances classified as CMRs, and included in Annex VI to CLP but not yet included in the Appendices 1-6 of Annex XVII to REACH, covered by the restrictions in entries 28-30 of Annex XVII to REACH?
No, only substances listed in the relevant Appendices (1 - 6) of Annex XVII are covered by the restrictions in entries 28 - 30.
 
When substances are classified for the first time as CMR and included in an ATP of the CLP Regulation, the European Commission prepares a draft amendment to include these substances in the Appendices of REACH Annex XVII. The amendment then has to be adopted in accordance with Article 68(2) of REACH, before the new substances are covered by entries 28-30.
Entry 31 of Annex XVII to REACH - Creosotes in wood

What is the meaning of the expression "second hand market for re-use" in paragraph 2(c) of entry 31 of Annex XVII to REACH?
Paragraph 1 of entry 31 prohibits the placing on the market of wood treated with the substances listed in points (a) to (i) of column 1 of the entry, whether as substances on their own or as mixtures. Paragraph 2(c) of entry 31 states that "….the prohibition in paragraph 1 on the placing on the market shall not apply to wood which has been treated with substances listed in entry 31 (a) to (i) before 31 December 2002 and is placed on the second-hand market for re-use….."
 
This derogation therefore concerns wood that had already been treated with the substance listed in points (a) to (i) of column 1 of entry 31 before 31 December 2002. The intention of the derogation is to allow second-hand wood treated before 31 December 2002 with the substances covered by this entry to be traded by the end-user and subsequent users. This type of derogation is often included in restriction entries to avoid enforcement difficulties.
It should be noted that the conditions in paragraph 3 apply to second-hand wood benefiting from the derogation in paragraph 2(c). Thus, it cannot be used e.g. inside buildings, in toys, in playground etc.
Entry 40 of Annex XVII to REACH - Flammable substances in aerosol generators for entertainment and decorative purposes

Entry 40 of Annex XVII prohibits the use of flammable, highly flammable or extremely flammable substances in "aerosol generators placed on the market for the general public for entertainment and decorative purposes". Are aerosol generators containing coloured hairsprays and glitter for the body and sold to the general public restricted under this entry?
 Entry 40 provides an indicative list of examples of products that are covered by the restriction. These examples are all products to be used for the decoration of venues for festivities/parties and for use during parties. None of these examples are cosmetic products within the meaning of Regulation (EC) No 1223/2009 on cosmetic products.
Article 67(2) of REACH excludes cosmetic products as defined by Directive 76/768/EEC (now Regulation (EC) No 1223/2009) from the scope of restrictions when they target risks to human health within the scope of that legislation. This restriction on aerosol dispensers is entirely linked to the human health of consumers, which are fully addressed by Regulation (EC) No 1223/2009. 
Therefore, the restriction in Entry 40 of Annex XVII to REACH, prohibiting the use of flammable, highly flammable or extremely flammable substances in "aerosol generators placed on the market for the general public for entertainment and decorative purposes", does not cover aerosol dispensers which are cosmetic products. Coloured hair sprays and body glitter fall within the definition of cosmetic products in Regulation (EC) No 1223/2009 as they are intended "to be placed in contact with an external part of the human body" with a view to "changing its appearance". They have a similar use to more classical cosmetic products, such as normal hair sprays and should not be considered as having an entertainment or decorative purpose within the meaning of the entry.
Are there any definitions for aerosols, aerosol dispensers, in the context of Entry 40?

The REACH Regulation does not define aerosols or aerosol dispensers.
According to the ordinary meaning of the word, an aerosol is considered to be "a substance enclosed under pressure and released as a fine spray by means of a propellant gas". (Oxford advanced dictionary definition). The term may in certain contexts be used for a mixture enclosed under pressure and released as a fine spray by means of a propellant gas, or the dispenser or package used to change the ingredient inside the container into a spray by the use of a propellant gas. The European Aerosol Federation uses the term "aerosol" for both the suspension and the dispenser/package.

Furthermore, it should be noted that according to Article 2.3.1 of the CLP Regulation (for "Classification, Labelling and Packaging"), the term "aerosol dispenser" means: any non-reusable container made of metal, glass or plastic and containing a gas compressed, liquefied or dissolved under pressure, with or without a liquid, paste or powder, and fitted with a release device allowing the contents to be ejected as solid or liquid particles in suspension in a gas, as a foam, paste or powder or in a liquid state.

The CLP definition is very similar to the definition provided in Article 2 of the Aerosol Dispensers Directive (ADD) (75/324/EEC).
The above definitions provide an indication of what could be generally considered as ‘aerosols/aerosol dispensers' in the context of Entry 40 of Annex XVII. Note that aerosol generators should be regarded as aerosol dispensers, as the original restriction discusses aerosol generators.

What is the meaning of products for entertainment and decorative purposes in the context of entry 40 of Annex XVII? Are aerosol dispensers containing coloured hairsprays and glitter for the body and sold to the general public restricted under this entry?

Entry 40 prohibits the use of flammable, highly flammable or extremely flammable substances in "aerosol dispensers where these aerosol dispensers are intended for supply to the general public for entertainment and decorative purposes". Paragraph 1 provides an indicative list of examples of products that are covered by the restriction. These examples are all products to be used to decorate, for instance, venues for festivities (e.g. Christmas, weddings, and carnivals) or parties (e.g. birthday parties and fancy-dress parties) and for entertainment use, for instance, during festivities and parties. None of the examples listed in the entry are cosmetic products within the meaning of Regulation (EC) No 1223/2009 on cosmetic products.

Coloured hair sprays and body glitter would fall within the definition of cosmetic products in Regulation (EC) No 1223/2009, as they are intended "to be placed in contact with an external part of the human body" with a view to "changing its appearance" and therefore have a similar use to more classical cosmetic products, such as normal hair sprays. Coloured hair sprays and body glitter should not be considered as having an entertainment or decorative purpose, and therefore they are not covered by entry 40 of Annex XVII to REACH.

Entry 43 of Annex XVII to REACH - Azocolorants and Azodyes

Are optical brightening agents (OBAs) azodyes within the meaning of the Entry 43 to Annex XVII?

Through a literature search and consultation with experts in this area it was not found any structural connection between optical brighteners (or better called fluorescent dyes) and azodyes since either the NH bonds in the fluorescent dyes are connected to heterocyclic NC structures and therefore cannot form any of the 22 banned arylamines or they do not contain any azo bonds where reductive cleavage could take place to generate any of the aromatic amines covered by the azodyes ban. Therefore at the present time, this information confirms that the restriction in Entry 43 to Annex XVII does not cover optical brightening agents (OBAs). Should the chemical structure of optical brightening agents be different from the definition as reported above, this answer may change accordingly.

The restriction indicated in entry 43(3) applies only to the placing on the EU market of substances or mixtures containing the azodyes listed in Appendix 9 at a concentration exceeding 0.1% by weight, and to the use of such substances/mixtures within the EU. Does the restriction therefore not apply to imported articles which have been dyed with the azodyes listed in Appendix 9?

Entry 43(3) of Annex XVII restricts the placing on the market of substances and mixtures containing over 0.1% of the azodyes listed in Appendix 9, when they are intended for colouring textile and leather articles, and also the actual use of the substance or mixture for that purpose. Therefore, the presence of these substances in imported articles is not restricted.

However, pursuant to paragraphs 1 and 2 of the restriction, if an azodye in Appendix 9 releases one or more of the aromatic amines listed in Appendix 8 in a concentration above 30 mg/kg (0,003 % by weight, it cannot be used in textile and leather articles which may come into direct and prolonged contact with human skin or the oral cavity (such as those listed in paragraph 1). Those textile and leather articles cannot be placed on the market unless they comply with that concentration limit.

Is the list of restricted items in entry 43 of Annex XVII to REACH concerning azocolourants and azodyes exhaustive?
No. The use of the words “such as” makes clear that the list of items mentioned in paragraph 1 of entry 43 of Annex XVII to REACH is a non-exhaustive list of examples of items covered by this restriction (clothing, footwear, textile toys etc.). 
Do sofas and chairs (e.g. garden chairs/sun loungers’ type) fall under the scope of the restriction entry 43 of Annex XVII to REACH?
Yes. Garden furniture made of textile or leather is covered by entry 43 as people who use them can be in light clothing (even in bathing suits or bare) and “direct and prolonged contact with human skin” is very likely. There is even a direct reference to chair covers in the list of examples of articles covered by the restriction. 
Entry 46 of Annex XVII to REACH - Nonylphenol.

Does the entry 46 of Annex XVII cover traces in cosmetic products?
Regulation 1223/2009 on cosmetic products, that repealed Directive 76/768/EEC, introduces a ban on the marketing of cosmetic products containing nonylphenol (CAS: 25154-52-3) and 4-nonylphenol, branched (CAS: 84852-15-3). Pursuant to Article 17 of the cosmetics Regulation, the presence of traces in cosmetic products is allowed, provided that such presence is technically unavoidable in good manufacturing practice and that the product does not cause damage to human health.  
Entry 46 of Annex XVII to REACH bans the placing on the market of nonylphenol and nonylphenol ethoxylates as a substance or in mixtures in a number of applications including cosmetic products, when the concentration is higher than 0.1% by weight. The objective of entry 46 is the protection of the environment. Therefore Article 67 (2) of REACH does not apply. Entry 46 covers traces in cosmetic products to the extent that their presence presents a risk to the environment. The application of entry 46 of Annex XVII to REACH is complementary to, and does not conflict with, Regulation (EC) No 1223/2009. 
 
Does the entry 46 of Annex XVII cover all nonylphenols?

Yes. The intention of the legislator was to cover all isomers, linear and branched, of nonylphenol and their ethoxylates and therefore all of them are covered by the restriction.

The restriction on nonylphenol and nonylphenol ethoxylates was based on the risks identified in the risk assessment report prepared by the United Kingdom under Council Regulation (EEC) No 793/93 of 23 March 1993 on the evaluation and control of the risks of existing substances. The risk assessment report states that "It is understood that nonylphenol (CAS Number: 25154-52-3) as originally defined by CAS (Chemical Abstract Service) covered all nonylphenols. However, subsequent revisions redefined it to cover only straight chain nonylphenol, other isomers having different CAS numbers. Given the method of manufacture of nonylphenols, very little if any straight chain nonylphenol is produced. That which is produced is only likely to be present at very low levels in commercial mixtures. The commercially produced nonylphenols are predominantly 4-nonylphenol with a varied and undefined degree of branching in the alkyl group. This assessment covers commercially produced material (predominantly 4-nonylphenol, branched). This material will also contain smaller amounts of other isomers and impurities, and falls under the CAS Number 84852-15-3."

Therefore Council Directive 76/769/EEC, as amended by Directive 2003/53/EC, did not specify any CAS or EC numbers for nonylphenol. In the revision of the REACH restriction by Regulation 552/2009/EC, which made several technical changes, the CAS and EC numbers were added. This will be corrected by a technical amendment to reflect the intention of the legislator.

What are personal care products in entry 46?

Paragraphs (1) to (9) of entry 46 list the ‘purposes' to which the restriction applies. Following paragraph (7) "cosmetic products" is paragraph (8) "other personal care products". It therefore seems that cosmetics are to be considered as a subcategory of personal care products.

REACH does not define "cosmetic products". According to Regulation (EC) No 1223/2009 on cosmetic products,  "cosmetic product" means "any substance or mixture intended to be placed in contact with the external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance protecting them, keeping them in good condition or correcting body odours."

Based on the above, it can be interpreted that "other personal care products" within the meaning of entry 46 include, but are not limited to, any product meeting the conditions indicated in the above definition for substances and mixtures and other products used for personal hygiene, such as toilet papers, some female hygiene products, nappies, cotton pads, etc. This interpretation can be broadly considered as a perception of the average consumer for this product category. 

Entry 48 of Annex XVII to REACH - Toluene

For adhesive tapes, does the concentration limit for toluene of 0.1% in adhesives as specified in Entry 48 of Annex XVII apply to the whole mass of the tape or just to the mass of the adhesive layer on the tape?

Entry 48 prohibits the placing on the market for supply to the general public of toluene as a substance or in mixtures, in a concentration equal to or greater than 0.1% by weight, where the substance or the mixture is used in adhesives and spray paints. Adhesive tapes consist of a layer of adhesive coated on a flexible substrate. As the restriction concerns the concentration of toluene in adhesives, the concentration of toluene must be calculated with reference to the amount of adhesive on the tape, and not with reference to the total weight of the adhesive and substrate.

Entry 50 of Annex XVII to REACH - PAH in extender oils and tyres

What is an interpretation of the "major operational change" concerning the requirement to control the calibration of the PAH/PCA ratio after each "major operational change" under Entry 50 to Annex XVII?

As stated in Recital 8 of the Directive 2005/69/EC (OJ L323, 9.12.2005, p.51), there are at present no harmonized test methods for measuring PAHs in the extender oils, or for measuring PAHs in tyres that contain such oils. Until suitable harmonized methods are available, the only named method that is permitted for measuring the PAH content of extender oils is the IP346 analysis method. This method is permitted providing that certain additional conditions are met. These additional conditions are necessary because the IP346 method does not measure the PAH content directly. In fact IP346 measures the total content of polycyclic aromatic compounds (PCA) rather than the PAH content. The PCAs are a group of substances to which PAHs belong, but in which PAHs are present in only very small amounts. The legal limit for PAHs in extender oils, which is 1 part per million (ppm) of BaP and 10ppm total PAH content, is considered to be met if the total PCA content is <3%. In other words, the PCA content of 3% is taken as a proxy measurement for a PAH content of 10ppm. The proxy measurements will be valid only if the ratio between the PAH and PCA content in the extender oil is known and does not change over time. The additional conditions therefore require an initial calibration of the technique (measurement of the PAH/PCA ratio) and recalibration at intervals of six months, or after "major operational change", in order to ensure that the measurements remain valid over time. The term "major operational change" should therefore be taken to mean any change in materials or processes that could invalidate the results of the proxy measurement. The principle cause of invalid results would be a change in the PAH/PCA ratio in the extender oil. However, it should be remembered that not only is IP346 a proxy method for measuring PAH, but that the quantity that it does measure, namely PCA content, is meaaured in a rather indirect way, namely by a change in the refractive index of a solution, and that PCAs are not the only substances that affect the refractive index of a solution. The potential for obtaining invalid results is therefore quite high and the method should therefore be used with considerable caution. It would therefore be advisable to recalibrate in case of doubt. The provision to control the calibration of the PAH/PCA ratio every six months is to safeguard the validity of the IP346 results against unintentional or unknown changes. This would apply for the case where the manufacturing process and materials used remain the same, and where there is no reason be expect a change in the PAH/PCA ratio. However, it is possible to imagine, for example, that a tyre manufacturer receives a reformulated extender oil from his supplier without being made aware of the change that has been made, and the results from the IP346 could be invalidated as a consequence. A six month recalibration interval was considered sufficient to cover such occurrences. Conclusion: The provision to control the calibration of the PAH/PCA ratio after each "major operational change" is to safeguard the validity of the IP346 results. A major operational change is therefore a deliberate change to materials or processes that might be expected to significantly influence the PAH/PCA ratio, or otherwise affect the validity of the measurement. Examples of such a change would be where the source of supply for the extender oil is changed, or where the method of using the oil is changed. Judgment of whether a particular change is sufficiently important to trigger the need for recalibration will necessarily be made case-by-case and will require expert opinion.

Does the restrictions provided in Entry 50 concerning on PAHs in tyres cover mobile machinery?
Entry 50 to Annex XVII as enacted by Commission Regulation 552/2009 restricts the use of PAH in tyres for "vehicles covered by Directive 2007/46/EC establishing a framework for the approval of motor vehicles and their trailers".
Article 2 of Directive 2007/46 defines its scope. Paragraph 1 lists the vehicles designed for use on roads.
Article 2 of Directive 2007/46, Paragraph 3 lists the following vehicles:
a) vehicles designed and constructed for use principally on construction sites or in quarries, port or airport facilities;
b) vehicles designed and constructed for use by the armed services, civil defence, fire services and forces responsible for maintaining public order;
c) mobile machinery.
Article 2 of Directive 2007/46, paragraph 4 lists the following vehicles:
a) vehicles intended exclusively for racing on roads;
b) prototypes of vehicles used on the road under the responsibility of a manufacturer to perform a specific test programme provided they have been specifically.
In addition the definition of "motor vehicle" in point 11 of Article 3 requires that the vehicles covered should have a maximum design speed limit exceeding 25 km/h. In conclusion the restriction in Entry 50 covers the tyres for vehicles listed in the Article 2 paragraph 1, 3 and 4 of Directive 2007/46/EC which have a maximum design speed limit exceeding 25 km/h. Tyres of mobile machinery with a maximum design speed limit exceeding 25 km/h are therefore covered by the restriction and have to comply with the conditions set in the entry 50.
Does the restrictions provided in Entry 50 of Annex XVII concerning on PAHs in tyres cover "Standard reference tyres"?

Standard reference tyres are produced and imported solely for the purpose of providing a reference performance for other newly developed tyres. They are not placed on the market to be fitted on vehicles intended for final users. For the purpose of entry 50, tyres are defined as tyres for vehicles covered by Directives 2007/46/EC on motor vehicles and their trailers, Directive 2003/37/EC on agricultural or forestry tractors, and Directive 2002/24/EC on two and three-wheeler motor vehicles. It appears that Reference Tyres are not intended to be used on vehicles covered by the Directives 2007/46/EC, 2003/37/EC and 2002/24/EC. In conclusion these tyres should not be considered as covered by the provisions of the restriction in Entry 50 of Annex XVII.

Entry 51 and 52 of Annex XVII to REACH - Phthalates in toys and childcare articles

In Entries 51 and 52 of Annex XVII respectively it is stated that the substances DEHP, DBP and BBP on the one side and the substances DINP, DIDP and DNOP on the other side "shall not be used as substances or or in mixtures, in concentrations of greater than 0.1% by weight of the plasticised material…". Does the 0.1% limit apply to each phthalate listed individually, or whether it applies to the 3 or 6 phthalates combined? How should this limit of 0.1% be applied when a product contains traces of more than one these substances?

The threshold of 0.1% is the standard threshold used in Annex XVII. The value of 0.1% has been chosen because it represents a measurable quantity. It is being used to take into account impurities, not to allow the use of certain substances, e.g. phthalates in toys and childcare articles. One should be aware that in order to plasticise a toy or childcare article concentrations of phthalates of more than 10 per cent are needed. Different restrictions are applied to each of the two groups of phthalates. The limit value of 0.1% should therefore be applied for each group of phthalates combined, i.e. the concentration of DEHP, DBP and BBP combined should not be higher than 0.1% and the concentration of DINP, DIDP and DNOP combined should also not be higher than 0.1%. Conclusion: A toy or childcare article would not comply with the Entry 51 or Entry 52 respectively if it contained either more than 0.1% of DEHP, DBP and BBP combined or more than 0.1% of DINP, DIDP and DNOP combined. However, it would be considered compliant if it contained only 0.09% of DEHP, DBP and BBP combined and 0.09% of DINP, DIDP and DNOP combined.

Are the articles destined to be used for the hygiene of children such as bathtubs, articles for the bath, bathtub mats, hairbrushes, bath thermometers, or nail cutters covered under Entries 51 and 52 of Annex XVII?

The entries 51 and 52 specify that "Childcare article" means "any product intended to facilitate sleep, relaxation, hygiene, the feeding of children or sucking on the part of children." As these articles are intended to facilitate the hygiene of children they should be considered as "childcare articles" as defined by the entries 51 and 52. In conclusion, articles which are used for the hygienic care of children such as bathtubs, articles for the bath, bathtub mats, hairbrushes, bath thermometers, or nail cutters are therefore covered by the Entries 51 and 52 and use of phthalates and should conform to the prescriptions of the entries.

Do mattress protectors (covers, pads etc.) fall within the scope of Entries 51 and 52 of Annex XVII?

The definition of childcare articles contained in Annex XVII to REACH is as follows: "Childcare articles" are defined as "any product intended to facilitate sleep, relaxation, hygiene, the feeding of children or sucking on the part of children". Further explanation is provided by the Commission services' guidance document on the interpretation of the concept "which can be placed in the mouth". It gives the following examples: "The main purpose of pyjamas is to dress children when sleeping and not to facilitate sleep. Pyjamas should therefore be regarded as textiles and, like other textiles, do not fall under the scope of the Directive. Sleeping bags are designed to facilitate sleep, and should therefore fall under the Directive." Taking this into account, and also taking into account that the guidance document explicitly contains a description and a photo of a mattress cover, it can be confirmed that mattress protectors are childcare articles as defined in Annex XVII. This means that the three phthalates DEHP, BBP and DBP listed in entry 51 of Annex XVII may not be used in mattress protectors. The other three, DINP, DIDP and DNOP, listed in the entry 52, are only restricted in those articles that can be placed in the mouth by children.

Can mattress protectors (covers, pads etc.) be placed in the mouth by children within the meaning of Entries 51 and 52 of Annex XVII?

The guidance document contains an example of a mattress cover that is not directly mouthable in normal and foreseeable use conditions. The edges and corner are not accessible for mouthing by the child – by design (the mattress should fit snugly in the cot to avoid entrapment risks), and the mattress is covered with a sheet in normal use and the surface is sufficiently taut (by design – to avoid suffocation risks) to prevent PVC from being mouthed through the sheet. This is based on the observation that inaccessible parts of articles can not be taken into the mouth. Articles or parts of articles should be considered inaccessible if, during proper use or reasonably foreseeable improper use by children, they can not be reached. However, there will be other cases when parts of certain articles can be taken into the mouth under normal and foreseeable conditions, for example when the mattress protector is placed on the sheet or cannot be completely fixed. In conclusion, mattress protectors that can be placed above sheets or that cannot be tightly fixed to the mattress have to comply with the restriction contained in entry 52 of Annex XVII to REACH. Authorities competent for market surveillance should assist manufacturers/importers in making a case-by-case assessment on the basis of the criteria described above and in the guidance document.

Is the substance Di-2-propyl heptyl phthalate (DPHP), CAS No 53306-54-0 restricted under Entry 52 of Annex XVII or is DPHP as a new compound different from DIDP and therefore not covered by the restrictions in Entries 51 and 52?

The restriction in entry 52 concerns the substance "Di-isodecyl phthalate" (DIDP) which is listed with CAS Numbers 26761-40-0 and 68515-49-1. Di-2-propyl heptyl phthalate (DPHP) is an isomer of decyl phthalate and has the CAS No 53306-54-0. According to the information at the Commission's disposal, DPHP (CAS # 53306-54-0) is different from DIDP and therefore not covered by entry 52 of Annex XVII. In conclusion, the substance is not covered under the entry 52 of Annex XVII. The uses of the substance may be regulated in the future on a Community-wide basis, if it appears from the information which will become available that it causes unacceptable risks to human health or the environment. In addition DPHP is explicitly not promoted by its manufacturers for use in toys, food packaging or medical products.

What is the interpretation of the concept "which can be placed on the mouth" as laid down in the entry 52, concerning toys and childcare articles?

Guideline on the interpretation of the concept "which can be placed in the mouth" as laid down in the entry 52 of Annex XVII to REACH Regulation 1907/2006.

This guideline aims at providing some criteria and examples to help identify those toys and childcare articles which can be placed in the mouth by children. The guideline lists the main criteria of "size dimension" and "accessible parts" (according to the EN 71-European Standard on the safety of toys) which would therefore facilitate the judgement - on a case by case – whether a toy or childcare article can be placed in the mouth by children.  The guideline also provides pictures as examples in order to better indicate which toys and childcare articles or parts of them can be taken into the mouth.  

Do blankets and objects to facilitate the transport of children fall within the scope of Entries 51 and 52 of Annex XVII?
The Guideline on the concept "which can be placed in the mouth" [See Q&A 748], provides certain clarifications concerning the types of childcare articles within the scope of Entries 51 and 52 of Annex XVII. For instance, sleeping bags are claimed to be articles designed to facilitate sleep, and should therefore fall under the scope of Entries 51 and 52. In addition, the guidance document explicitly contains a photo of a mattress cover which is considered as childcare articles, also explaining that certain parts (e.g. mattress protectors) can be placed in the mouth by children. [See Q&A 675]. 
 
Blankets are, in nature, articles similar to mattresses as both used in bed to facilitate the sleeping of children and therefore can be claimed to meet the broad definition of childcare articles. Furthermore, since blankets can be commonly placed in mouth by children, these can be considered within the scope of both Entries 51 and 52 of Annex XVII. 
 
The Guideline clarifies that "entry 52 of Annex XVII on what can be placed in the mouth by children also covers the accessible parts of articles such as push chairs, car seats, sleeping bags and bike seats which are intended to facilitate sleep and relaxation during transport". Given that child seats and items which are used for transportation of children are quite similar in function and design to the above mentioned types of articles, they can be broadly considered as childcare articles [See Q&A 983]. In addition, it is noted that pictures of such types of childcare articles are also provided at the end of the Guideline. Over there, examples of mouthed items of such articles are provided to assist enforcers conclude whether they fall (or not) under the scope of entry 52. 
In entry 51 of Annex XVII to REACH, does the concentration limit "0,1 % by weight of the plasticised material in toys and childcare articles" relate to the whole article or only part of it?". For instance, if only the head of a doll contains more than 0.1 % w/w phthalates, should the concentration be calculated on the total weight of the plasticised material of the whole toy or only for the weight of the plasticised material of the head?

The 0.1% limit was set up in order to eliminate the use of phthalates. Such limit was set up in order to be respected in each bit/piece of plasticised material by itself, regardless of whether there are other pieces or not. Therefore the reference to 0.1%, intended also as the sum up to the 3 phthalates, has to be calculated in each piece of plasticised material of each homogenous material. In the example referred to in the question the calculation should therefore be based on the weight of the plasticised material of the head of the doll and not the entire weight of all plasticised material of the whole toy.

Does a baby monitor fall under the definition of childcare article in the context of entries 51-52 of Annex XVII to REACH?

A childcare article is defined by entries 51 (4) and 52(4) as "any product intended to facilitate sleep, relaxation, hygiene, the feeding of children or sucking on the part of children" (see Q&A 983). A baby monitor does not facilitate the sleep or relaxation of the baby, it allows parents to be alerted when the baby is crying or making other noise. Therefore baby monitors fall outside the scope of entries 51-52 of Annex XVII.

Do entries 51 and 52 of Annex XVII of REACH cover certain articles often used by children (e.g. school supplies, clothing or hair accessories)?
No, items such as school supplies, clothing or hair accessories are not considered as toys in the sense of the Directive 2009/48/EC on the safety of Toys, as their main purpose is not to be used in play by the children. However, certain products such as plastic combs can fall under the definition of ‘childcare articles’ (defined in the restriction as any products intended to facilitate sleep, relaxation, hygiene, the feeding of children or sucking on the part of children) see (Q&A 0983). 
Entry 56 of Annex XVII to REACH - Methylenediphenyl diisocyanate (MDI)

Does the entry 56 of Annex XVII cover, besides the MDI monomers, also the oligomers and polymers of MDI?

The polymeric MDI, with CAS number 9016-87-9, is not included in the definition of the substance with CAS 26447-40-5 and moreover is not classified as dangerous in Annex VI of Regulation (EC) No 1272/2008 (CLP). In the Risk assessment report and Risk reduction strategy performed by the Belgian Rapporteur, two main products were analysed during the exposure assessment and throughout the decision making process: the one-component foams and hot melt adhesives, both containing respectively 10% and 2% of MDI. Other products with MDI content below 0.1% did not pose any risk and therefore were excluded by the final consideration on the risk reduction measures under Directive 76/769/EEC. However, polymeric MDI present in mixtures is covered by the restriction when such mixtures contain more than 0.1% of MDI (as defined in the RAR). Therefore, dimers and polymeric forms of MDI are out of the scope of the current restriction except if they are part of mixtures containing more than 0.1% of MDI.

Entry 58 of Annex XVII to REACH - Ammonium Nitrate

Does the derogation to the prohibition of supply of mixtures containing more than 16% of ammonium nitrate in paragraph 2(a) of Entry 58 of Annex XVII cover only downstream users and distributors who have a licence under Council Directive 93/15/EEC on civil explosives (OJ L 010, 16.01.1993 p.19) or whether it covers all downstream users and distributors?

In entry 58, the terms "including natural or legal persons licensed or authorised in accordance with Council Directive 93/15/EEC" should be read as an example of operators that benefit from the exemption. Therefore the derogation in paragraph 2(a) covers all downstream users and distributors as defined in Article 3(13) and 3(14) of REACH. As a consequence, mixtures containing more than 16% of nitrogen in relation to ammonium nitrate may be placed on the market after 27 June 2010 for supply to downstream users and distributors as defined in REACH. As consumers are not downstream users nor distributors, mixtures containing more than 16% of nitrogen in relation to ammonium nitrate may not be placed on the market for supply to consumers.

Can the downstream users acquire ammonium nitrate in order to produce mixtures containing more than 16% of nitrogen in relation to ammonium nitrate for supply to the general public, for example, in cold packs according to Entry 58 of Annex XVII?

If a downstream user uses ammonium nitrate to produce a mixture containing ammonium nitrate below the threshold, it may place this mixture on the market for supply the general public. But downstream users should not use ammonium nitrate in order to produce a mixture containing ammonium nitrate above the threshold for supply to the general public. The restriction is applicable to medical devices as well as to other mixtures containing more than 16% of nitrogen in relation to ammonium nitrate for supply to the general public. For example, instant cold packs which contain more than 16% of nitrogen in relation to ammonium nitrate may not be sold to the general public since 27 June 2010.

Can the downstream users acquire ammonium nitrate in order to produce mixtures containing more than 16% of nitrogen in relation to ammonium nitrate for their industrial or professional activities according to paragraph 2 of Entry 58 of Annex XVII?

The restriction is not applicable to downstream users who use ammonium nitrate for their industrial or professional activities in order to transform it into other substances for different purposes. Therefore, for example the use of ammonium nitrate to produce nitrous oxide for use in the production of pressurised foods or for use as anaesthetics is not restricted.

Entry 59 of the Annex XVII to REACH - Dichloromethane

Does the restriction of dichloromethane in REACH Annex XVII (entry 59) for paint strippers also cover ink strippers, adhesive removers and degreasing agents?

No. Ink strippers, adhesive removers and degreasing agents are not within the scope of the restriction. The restriction covers paint strippers, including also varnish removers and lacquer removers.

Entry 63 of Annex XVII to REACH - Lead and lead compounds

Can you give examples of lead-containing articles intended for the general public that are covered by or excluded from Entry 63 (paragraphs 7 to 10) of Annex XVII to REACH?

This document echa.europa.eu/documents/10162/13563/lead_guideline_information_en.pdf aims at providing a guideline concerning the interpretation of the scope of the restriction provisions in paragraphs 7 to 10 of entry 63 of Annex XVII to REACH Regulation (EU) No 1907/2006 on lead and its compounds in articles supplied to the general public. It has been drawn up to (i) clarify certain terms that define the scope of the restriction (e.g. "accessible part of articles", "normal/reasonably foreseeable conditions of use") (ii) provide non-exhaustive lists of article types (and examples of sub-types) which fall within (or out of ) the scope of the restriction.

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