United States: REACH Legislation

Last Updated: April 8 2011
Most Read Contributor in United States, September 2019

The European Union's Regulation concerning the Registration, Evaluation and Authorisation of Chemicals ("REACH") is EU legislation with a global impact. REACH directly affects any company that manufactures chemicals in Europe, imports chemicals into Europe or uses chemicals within Europe. Any supply chain that includes the manufacture or use of chemicals in Europe is thus potentially affected by this comprehensive regulation. The REACH Regulation was formally adopted on 18 December 2006 (Regulation (EC) No. 1970/2006; Official Journal L 396/1) and entered into force on 1 June 2007.

Imposing a series of unprecedented requirements on the manufacturing sector and its supply chains, REACH has created a demand for the development of information concerning the health and environmental effects of chemicals ranging from newly developed substances to elements used since the Bronze Age. This new regulation demands a much broader and deeper level of cooperation among companies that manufacture, sell or use the same chemical, requiring them to navigate an entirely new bureaucracy to obtain the registrations and authorisations necessary to continue existing business lines and develop new ones.

A Multidisciplinary Team and Global Approach

Jones Day believes a multidisciplinary, global approach is required to effectively anticipate and address the complex legal issues raised by the unprecedented demands of this new regulation.

We have formed a multidisciplinary team composed of the Firm's environmental, corporate, antitrust and IT practices to provide advice on legal issues related to the implementation of the REACH legislation. This team, based primarily in Europe, also includes lawyers in the United States and Asia.

Our global network not only enables us to cover the countries where REACH is being implemented, but also allows us to provide advice to non-European companies impacted by this new EU regulation.

Assistance in the Creation, Development and Management of Consortia for REACH Compliance

Early-stage implementation of the REACH Regulation will require the cooperation of companies that manufacture, import or use the same chemical substance. One possible form of such cooperation is the creation of consortia that jointly address the issues companies will face in complying with REACH. Parties to a consortium must choose a leader (the lead registrant) and define the rules for the consortium's management and governance; these rules must be clear, transparent, proportionate and nondiscriminatory. The parties must also address, among other things, confidentiality and antitrust issues and must agree on how to share the cost of data owned by one or more members and the cost of new data developed by the consortium.

Our multidisciplinary, worldwide team provides assistance in all legal issues related to REACH compliance and consortium formation, including:

  • Identification of appropriate structure (consortium/ cooperation agreement) to implement REACH.
  • Negotiation and drafting of consortium/cooperation agreements.
  • Identification of the applicable regulatory regime.
  • Advice regarding compliance with the REACH regulation.
  • Selection of technical assistance.
  • Management of relationships with authorities at the EU and State levels to preregister and register the substances concerned and to obtain the required authorisations.
  • Compliance with antitrust law.
  • Handling of IP/IT issues.
  • Resolution of liability issues among the members/partners.
  • Resolution of corporate governance and termination issues.
  • Advice in relation to confidentiality issues.

Our Experience

Jones Day has been advising clients on REACH since the earliest proposals and has been engaged in significant representations in connection with the implementation of this regulation. Examples of our involvement include the following:

  • The Firm is advising a US company in the metallurgy sector on regulatory, antitrust and other legal issues pertaining to the implementation of the REACH legislation; the advice has included the formation of consortia with other companies manufacturing and importing the same chemicals.
  • Jones Day has advised several EU and international companies on various regulatory issues related to REACH's scope, implementation, impact and deadlines for compliance.
  • We have provided legal advice to a company in the aeronautic sector in connection with REACH compliance and other legislation applicable to the placing on the market of dangerous substances.
  • The Firm regularly advises clients within the EU and elsewhere on compliance with EU legislation relating to chemicals and dangerous substances, as well as on related litigation matters (including asbestos).

Conferences and Publications

Jones Day lawyers have spoken at national and international conferences on REACH held in Brussels, Geneva, Frankfurt, Berlin and Cologne. We have also organized in-house seminars on this issue that stress company obligations and liabilities under REACH and the creation of consortia.

In addition, our lawyers regularly author articles in financial and legal publications on the REACH Regulation and related issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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