Canadian Finishing & Coatings Manufacturing Magazine Jan/Feb 2023 - 51

PAINT AND COATINGS MANUFACTURING: TI02
REGULATIONS
European Court Decision on TiO2: Regulatory Lessons for Canada
BY GARY LEROUX, PRESIDENT AND CEO, CANADIAN PAINT AND COATINGS ASSOCIATION
T
he draft screening assessment report for TiO2
and related titanium compounds is scheduled for
publication in Canada in 2023, under the federal
Government's Chemicals Management Program. The
Canadian government was clearly leaning towards a declaration
for TiO2
similar to that of the European Union in 2020. Industry
is now hopeful Canada will seriously consider recent decisions
taken in Europe in November 2022 wherein the European General
Court quashed the European Commission's 2020 classification
of TiO2
coatings industry and others were bracing for the impact if the
same classification were to happen here in Canada as TiO2
assessment. Industry stakeholders are still
is
widely used in the coatings and many other industries. No further
data is being collected by Canadian officials on TiO2
as there is
adequate toxicological data to make a fully informed decision in
the upcoming TiO2
waiting to see the selected data endpoints and calculated margins
of exposure once the Government's draft assessment is published
later in 2023.
When the EU classification was issued in 2020 the coatings
industry in Europe, North America and other countries strongly
contested it and argued that the decision was flawed. It was not
based on substantive scientific data. Industry organisations
lobbying
the
European Commission's
technical
agencies
demanded a more rational science-based approach, but this was
ignored. These groups included association members of the World
Coatings Council (WCC) such as CPCA, ACA, BCF, ABRAFATI,
CEPE and others. Of course, the Titanium Dioxide Manufacturers
Association (TDMA) was leading the effort and left no stone
unturned in refuting such an arbitrary approach to the data
supporting the Category 2 classification.
The final push came with an appeal to the European General
Court, which quashed the 2020 decision by EU authorities as it
clearly made an error in classifying TiO2
without robust data to
back it up. Industry would never be able to secure an outcome for
any chemical assessment without the substantive scientific data
to support its case. The growing concern today is legislators are
seeking more restrictive chemical regulations, which are held to
a lower data threshold than in the past. Conversely, industry is
increasingly required to meet a much higher threshold to maintain
the status quo of a chemical in commerce. Many maintain that this
is an unsustainable approach and begs the question, will the final
arbiter of regulatory decisions be played out with legal challenges
in the courts rather than as a matter of reasonable public policy?
The European Court ruling was viewed by the courts as an
'interpretation' of limited data leading to a significant error in
the final TiO2
to become toxic in future. Moreover,
it infringed on the established criterion for a Category 2
classification for chemical substances, that is, it did not prove
that it had an 'intrinsic property' to cause cancer, but merely the
'potential' to do so. Thankfully, the judgement reversed the highly
disruptive classification and labelling requirements under the
2020 declaration.
assessment. In fact, EU agencies relied essentially
on just one particular study in making the classification based
on the 'potential' for TiO2
The EU Court's decision makes a very strong point on the role of
as a Category 2 carcinogen. Until that happened the
public policy in the quest for more stringent chemical restrictions
however well intentioned. Indeed, the hope is this precedent will
inform future classification and prioritisation decisions, which
will demand regulatory authorities submit to a higher regulatory
standard for chemical regulations that is science-based. Had
it been left to stand, the EU classification would have also set a
bad precedent for other chemical assessments of substances in a
powder form (poorly soluble low toxicity particles or PSLT), not
only in the EU, but in other jurisdictions around the world. This
may still influence the upcoming TiO2
risk assessment in Canada
should stronger data come to light.
Furthermore, and as important, is the hope that the TiO2
decision will inform current deliberations on the reform of the
Canadian Environmental Protection Act (CEPA) as outlined in
the proposed amendments in Bill S-5 for chemicals in commerce.
While industry generally supported the Government of Canada's
CEPA amendments for chemical assessment, it raised many
serious concerns about the 62 additional amendments by the
unelected Senate. Senators admitted they did not have the
technical or scientific background to propose such amendments
and yet those amendments went forward to the House of
Commons for consideration. The Parliamentary committee is
about to resume its review of the Bill and finalise the amendments
over the coming weeks.
Some of these proposed amendments are concerning. For
example, imposing a specific 'time-clock' for chemical assessment;
loosely defining environmental justice concepts; removing
protection of critical Confidential Business Information (CBI)
submitted by industry for chemicals in the assessment process;
and, a controversial 'watch-list' of already regulated substances
submitted to the Minister by the public and without an established
protocol for removing them from the list, if ever. The arbitrary
watch-list will only harm the reputation of established product
brands even though they are already regulated and sold in Canada.
Some of these amendments are expected to be passed into law
without full clarity on how the regulations will be administered.
This amounts to a 'trust us' approach to legislative change. Such
amendments, if passed, are very likely to end up in the courts in
Canada similar to what recently happened in the EU.
The EU situation on TiO2
or any chemical assessment in
Canada would serve nobody's interest, not the Government,
nor industry, nor the public. It would call into question the
best practices used for chemical assessment approach used in
Canada to date and weaken Canada's image in the world, further
dampening direct foreign investment and innovation in Canada.
It would also do little-if anything-to further the protection of
human health or the environment. It will likely cause consumers
to question already regulated products. There will be fewer
competing products on the market and compliance will be very
difficult.
Canadian chemical regulations have been ramping up for
the past 15 years. Now, in several areas, there are diminishing
environmental benefits and increasing negative economic
returns.
January/February 2023
51
Canadian Finishing & Coatings Manufacturing Magazine Jan/Feb 2023

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