When words matter

Thomas H. Huxley, English biologist, one of the fathers of the modern science and great defender of Charles Darwin’s Theory of Evolution, once said: “A world of facts lies outside and beyond the world of words”… his public debate with Samuel Wilberforce in 1860, bishop in the Church of England, was a key moment of the global acceptance of the Evolution Theory and opened the door to a new step in human knowledge.

When he pronounced this famous quote his was not thinking in European Union, he was not thinking in REACH Regulation nor in law… but the sentence fits like a glove with an issue that we have been arguing about last weeks.

Let’s quote REACH Regulation:

ANNEX II - GUIDE TO THE COMPILATION OF SAFETY DATA SHEETS

1.3. Company/undertaking identification

Identify the person responsible for placing the substance or preparation on the market within the Community, whether it is the manufacturer, importer or distributor. Give the full address and telephone number of this person as well as the e-mail address of the competent person responsible for the Safety Data Sheet.


In fact, we didn’t place much attention on this particular paragraph. We have always understood that Safety Data Sheets (SDS) and labels of chemical products must present the identification of the person (in most of cases “legal person”) responsible of placing on the market of the substance or mixture.

It is remarkable the difference showed by REACH in this paragraph when referred to “person responsible”, that must be fully identified and “competent person responsible for the SDS”, role that only a “natural person” is able to take on.

This difference is also visible in Spanish translation (“Se identificará al responsable de la comercialización” vs “la persona competente responsable de las FDS"), in French (“Identification du responsable de la mise sur le marché de la substance” vs. “la personne chargée de la fiche de données de sécurité”) and in German („Zu nennen ist die Person, […] für das Inverkehrbringen […] verantwortlich ist“ vs „sachkundigen Person, die für das Sicherheitsdatenblatt zuständig ist“).

At this point, things were, more or less, quite clear.

When producer and responsible of placing on the market of a chemical product is the same person the question becomes irrelevant. But when it is placing on the market through distributors, things turned a little bit more complex.

We have seen chains of distribution where labels and SDS are not replaced and clients have full knowledge of the original producer of chemical products. In this cases, original producer is liable of the information content on labels an SDS, and will have to confront tort or any other way of assume liability in case of accident derived of mistakes or lacks of information.

In other chains of distribution, there are intermediate packers: companies buying chemical products in big amounts and re-pack then in smaller sized containers. A typical business is buying complete tankers of 32.000 litres and selling IBCs of 1 tonne. In this kind of distribution procedure, “re-packer” uses to change labels and SDS taking over liability and becoming “the person responsible for placing on the market”.

Another variation of this chain is when, for commercial reasons, distributors want to keep on secret to his clients who is the true producer of the chemical product although he merely replace labels and SDS in the own container of the original producer, he not even open the container. This kind of behavior is very common in markets like washing products for hospitality sector, bars, restaurants and hotels. Distributors become likewise responsible of placing on the market.

Roles were clear, and that’s the point, that’s what truly matter in this mess: the role assumed by any participant in this business and liabilities that may arise derived of it.

Well… like Murphy's law says: "Anything that can go wrong, will go wrong"…. or, maybe more appropriately: “Anything that could get worse, will get worse”.

In May, 2010, Official Journal of the European Union published the Regulation 453/2010/EC, of 20 May 2010 amending Regulation 1907/2006/EC of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH).

It is an amendment of Annex II to REACH Regulation, dedicated to compilation of data of SDS, to adapt it to the criteria for classification and other relevant provisions laid down in Regulation 1272/2008/EC… the new rules for classification, labelling and packing (CLP Regulation).

Regulation 453/2010 change paragraph 1.3 of annex II of REACH including an odd hue that must be taken into account. The new complete wording of it is:

1.3. Details of the supplier of the safety data sheet

The supplier, whether it is the manufacturer, importer, only representative, downstream user or distributor, shall be identified. The full address and telephone number of the supplier shall be given as well as an e-mail address for a competent person responsible for the safety data sheet.

Has the word “supplier” exactly the same scope as the concept “person responsible for placing on the market”?... there is an juridical adage that wisely says: “Whenever legislator changes a word in a law, it is changed with some reason”… if both ways of drafting lead to the same place… it was necessary to change?.

The change is not a matter of translation because it has been changed in every version of the Regulation 453/2010: it uses the word “proveedor” in Spanish, “fournisseur” in French and “Lieferant” in German.

But, sincerely, the word matters?... Let's move the words to “world of facts” and review the distribution chains we have seen before.

When producer and responsible of placing on the market are just one person, the effect is null. And in case of “re-packers with own labels” and “re-labelers”, the effect is also negligible, in both cases the word “supplier” identifies the person (I stress: legal o natural person) who provides the user with chemical products and whose data are “fully identified” in labels and SDS.

In other hand, whenever distributors provide their clients with chemical products with original labels and SDS, “supplier” and “person responsible for placing on the market” are not the same person. In many cases, direct “supplier” of many SMEs, are as well small or medium sized distributors that doesn´t have technical means to provide information or help in case of an accident or just in case of a mere doubt about the information included in the SDS.

Logic says, in this case, that our prior interpretation keeps valid and in paragraph 1.3 of an adapted SDS to CLP Regulation must be identifed the legal or natural person responsible of the information provided in the document and that may help the user in any case related to safety or environment matters on the use of the chemical product…. And that will assume liabilities as well.

But, then…. Why legislator changed the word?... does the word matter?...



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