Posts Tagged consumer health
Germany v Commission re toys: ECJ confirms that recourse to precautionary principle is no walk in the park.
The ECJ this morning held in Germany v Commission (for context see my earlier posting). On 1 March 2012, the European Commission only partially (and temporarily) granted Germany approval for upholding stricter limits on limit values for lead, barium, arsenic, antimony, mercury, nitrosamines and nitrosatable substances in toys (for the decision, see here).
The ECJ stood with Germany only in its appeal against the EC’s decision on values for lead: this decision was internally inconsistent (acknowledgement of higher public health protection in the German measures while at the same time unfounded (and vague) limitation in time for those German measures). However for all other substances, the ECJ rejected Germany’s appeal. In doing so it emphasises the burden of proof which the precautionary principle implies (often misrepresented by opponents of the principle). The review of the available scientific evidence shows first of all the challenges associated with the different methods employed by Germany cq the EC. The latter’s measures employ migration limits (migration being the amount of toxic substances not just released from the product but effectively absorbed by the human body), while Germany’s measures rely on bioavailability (the amount of chemical substances released from the product and available for human absorption, even if not all of that is necessarily effectively absorbed).
The ECJ supports the room for Member States to have divergent opinions on risk than those of the EC, however, it needs to show that the national measures better protect human health and do so in a proportionate way. The crucial shortcoming in Germany’s proof turned out to be that its exposure scenarios were, in the view of the ECJ, unrealistic (and not supported by further scientific reporting): they imply simultaneous exposure of a child to all possible toy safety Directive scenarios: dry, brittle, powder-like or pliable toy material; AND liquid or stocky toy material; AND scraped-off toy material.
Hum. That such simultaneous exposure should necessarily be unrealistic is of course open to debate. Many of us have tales to tell of children achieving the impossible with toys clearly not designed for the game a child or group of children might at some point concoct . (Reminiscent of the inherently flawed furniture endurance tests displayed by large furniture chains: I have always thought that letting our family loose on the displayed piece of kitchen, bathroom or dining room furniture would be a more realistic test than an engineered testroom).
As often with risk assessment and risk management: the final conclusion almost always remains open to discussion.
This is not a recent development, however, the US EPA’s filing of a brief in the relevant court case reminded me of the issue. In January last, the National Resources Defense Council – NRDC, announced its seeking to overturn the United States’ Environmental Protection Agency – EPA’s temporary approval of the use of nanosilver in fabrics.NRDC have been joined by others (see e.g. here for amicus curiae brief).
Starting in December 2011, EPA allowed the company HeiQ Materials to sell nanosilver used in fabrics for the next four years as the company completes studies on toxicity to human health and aquatic organisms.
I am not privy to the complete scientific file avalable to EPA and /or HeiQ Materials, however, the case has many familiar rings to it. Undoubtedly HeiQ have conducted their own test. Undoubtedly, too, they pointed EPA to existing studies on the dangers of exposure to nanosilver. However it is clear from reporting on the file that uncertainties remain, in particular with respect to the exposure of infants (who are inclined to chew on their clothes). The challenge is a classic application of the precautionary principle. Should the lack of full certainty lead to a ‘when in doubt opt out’ attitude, or should one adopt an incremental approach, making manufacturers subject to due process (ia in collecting data but also in protecting employees and consumers) and duty of care obligations whilst one awaits further data.
Never a joy for the parties concerned, however one could argue that it is only in litigating that we shall be able to set the boundaries along which regulatory authorities are to conduct themselves in addressing new technologies.
Once more unto the breach – German action against Commission Decision on the Toy safety Directive provides a master class in EU law
Pre-script: this case is now known as Case T-198/12, and on 15 May 2013 the Court by way of interim measure ordered the Commission to grant approval to the German measures in full, at least until such time as a judgment on the substance has been issued. It made specific reference to the precautionary principle. The ECJ eventually held in May 2014.
I have always thought of legislation on, and trade in, toys, as a perfect illustration for many regulatory mechanisms worldwide. Prof Francis Snyder’s work (see e.g. here) is a perfect illustration of same.
This is no different for the general workings, and finer mechanics, of EU law. Once more, the sector hands teachers and practitioners of EU law a perfect illustration of harmonisation techniques, exhaustion (pre-emption) arguments, and judicial review.
On 1 March 2012, the European Commission only partially (and temporally) granted Germany approval for upholding stricter limits on limit values for lead, barium, arsenic, antimony, mercury, nitrosamines and nitrosatable substances in toys (for the decision, see here) [As an aside, it is often said that one should never watch laws and sausages being made. Reading that list of substances, prima facie (only) one might want to add toys to that list]. Germany has announced it will appeal that decision with the Court of Justice of the EU.
I can think of one or two areas for discussion: risk management and migration limits v bioavailability (or the cheese and chalk argument); limits to pre-emption; application of the ‘environmental and health guarantee’ of Article 114 TFEU, including the principle of proportionality. Expect that future judgment to feature in core readers of EU law.