REACH, Single Use Plastics, Chemicals, Extended Producer Responsibility, Used Tires, Litigation
PERU REACH: Draft Regulation
As mentioned last week, Peru has posted the Draft Regulation to its REACH-inspired law for public comment. This Draft Regulation sets out the details we have been waiting for since the chemical registration law was adopted in May 2023.
Among the items of note in this complex draft regulation:
· Peru would be adopting GHS Rev 6 (2015)
· A first “anticipated classification list” akin to EU’s CLP Annex 6 or Chile’s Resolution 777/2021 is included as an Annex to the Draft.
· A complicated bifurcated system of chemical registration would be put in created in which substances already registered with the Ministry of Health (think: pesticide active ingredients) would be entered into the new registration platform by the government agency while un-registered substances would need to have their GHS classification, SDS, and label submitted for approval – before then reporting the imported or manufactured volumes in the new database by the importer or manufacturer.
· This call for pre-approval of classification, SDS, and label could create a bottleneck for a country that may not yet have the staffing or funding for the volume of chemicals that would potentially need to register.
· The regulation fails at adopting a true Only Representative structure – proposing instead a structure similar to Colombia’s Exclusive Representative Abroad to protect confidential information.
· The draft is long and addresses other important issues like prioritization of substances of concern and risk assessment and management measures.
The Draft is out for a very short public comment period of 10 business days that started on 7/27/2024.
Link to Draft:
Chile: Delay in Enforcement of Single-Use Plastic Law
Chile’s Single Use Plastics Law, with provisions meant to go into effect this month, looks like it will have its implementation delayed by at least 18 months. The executive branch has been delayed in getting out the regulation to the law due to the sheer number of comments it received during the public consultation. The decision to delay the implementation was presented as a bill in Congress that has so far been approved.
Major new initiatives – bans on single use plastics or first-time industrial chemical registrations – can take time to bring into force. Both industry and the government can experience delays in implementation. This delay should not be seen as an about-face by the Chilean government. It is moving on its Circular Economy initiatives on all fronts.
Brazil Regulates Third-Party Auditors for Reverse Logistics Systems
While on the topic of the Circular Economy and the infrastructure it requires, we must mention Brazil. The country continues to focus efforts – and regulation – on the issue of the complex industry-led mandatory extended producer responsibility schemes it refers to as “reverse logistics systems.” Last week, the country adopted one more pillar in the regulations: the criteria for qualification of the third-party auditors (referred to as “verifiers”) that will certify the results of collection and recycling declared by the waste management systems. The new standard also serves as the first call to register legal entities interested in getting into the business as verifiers. If you sell a wide range of products on the market in Brazil – or anything in packaging – you are likely covered by a reverse logistics obligation. Take note.
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Link to rule:
Peru Revising Used Tire Take-Back Rules
Circular Economy, as we have said before, is a popular regulatory concept in Latin America – as is extended producer responsibility (EPR). Several countries in the region have extensive EPR schemes for so-called priority products. Used tires happen to be one of those end-of-life products covered by mandatory take-back requirements in the region. But as we have discussed, sometimes the initiatives don’t go as planned in the implementation phase – requiring the government to tweak the standards or the enforcement.
Peru just posted for a very short ten-day public comment period some changes to its 2021 used tired EPR regulation that are designed to yield better results for the program (which was voluntary up until 2024). Comments are due by August 16, 2024.
Link to Draft:
Single-Use Plastics, Mexico, and the Courts
Mexico’s federal government, despite some effort on the part of the legislature in the recent past, has not yet enacted any national laws addressing single-use plastics, while its other Latin American neighbors have done so (Peru, Chile, Colombia, among others). Mexico is one of the three major federated republics in the region – and its states have authority to issue certain environmental regulations. Into that void, then, states have emerged to pass their own state laws banning single-use plastics. While such a patchwork of differing state standards can hinder the work of well-meaning large companies who wish to implement a truly national management plan, it is, nonetheless, within a state’s rights.
Or is it?
The law on single-use plastics enacted by the state of Oaxaca was invalidated in the Supreme Court of Mexico when it was challenged by industry.
Now, NGOs for the environment and consumer protection have been successful in obtaining a type of injunction known as an “amparo” that calls for the federal Congress to stop “ignoring” the issue and legislate a ban on single-use plastics. In what could be very important precedent, the court noted the government’s obligation to protect its citizens from exposure to “toxic substances” and the precaution principle.
The court’s opinion is an important precedent both in the regulation of plastics in Mexico and in environmental law, more generally, but it is still too early to determine whether it will result in Congressional action any time soon.
Cosmetics in Brazil and Chile: Things just go easier
Regulatory harmonization is a laudable but rare result – but regulatory convergence may be more attainable. Brazil and Chile last week announced a a trade facilitation initiative for the cosmetics sector. As part of the agreement, both countries will align their definition of “cosmetics products,” not require a Certificate of Free Sale, reduce prior sanitary requirements, and harmonize on labeling and good manufacturing practices. The agreement is a valuable precedent for similar negotiations in other sectors and countries in Latin America – showing that reducing trade barriers and keeping products and people safe are not mutually exclusive.
Please note that a correction has been made to the coverage on 'PERU REACH' - the country would be adopting GHS REV 6 (2015) not REV 5 as initially indicated. Thanks to the reader with the eagle eyes!