ECHA’s Risk Assessment Committee (RAC) adopted its opinion in June 2022 and the 60-day public consultation of ECHA’s Committee for Socio-Economic Analysis (SEAC) ended on 29 August 2022. Because the European Ombudsman found that the ECHA’s opinion development was tainted by maladministration (here), RAC was obliged to organise a new targeted public consultation ending on 6 October 2022 (here, here). Therefore, the opinion of RAC was not final at the time when the 60-day SEAC consultation ended.

• A question remains whether it was relevant to assess socio-economic impacts of the proposed restriction when its fundamental cause (i.e. “an unacceptable risk to human health or the environment […] which needs to be addressed on a Community-wide basis”), as defined in Article 68(1)of REACH, had not been definitively established and was still under consideration. In other words, whether the SEAC’s 60 days public consultation was from a legal perspective premature?

ECHA proposes that the EU should prohibit the use of lead and lead compounds “[…] in any other projectiles not defined as a gunshot for hunting […]” without however proposing that placing on the market of such centre- and rimfire rifle ammunition should be prohibited.

ECHA believes that consumers can be subject to restrictions under REACH and states that there are “several examples of existing restrictions that impact consumer uses” like (a) the discharge and carrying of lead gunshot in and around wetlands; (b) lead carbonate and sulphates must not be used in paint; (c) carcinogenic, mutagenic, reprotoxic substances must not to be used in mixtures for supply to the general public; and (d) nonylphenol and nonylphenol ethoxylates must not be used as substances or in mixtures for e.g. domestic cleaning (here).

Indeed, although consumers may be impacted by restrictions prohibiting economic operators from using certain substances in the manufacture of consumer products and placing those products on the market, the real question is whether consumers may be subject to a restriction, like the wetland restriction on lead shot.

The suggested ban on the use of centre- and rim-fire rifle ammunition containing lead for hunting is open for the following criticism:

Article 1(3) states that REACH obligations are based on the founding principle that it is for manufacturers, importers, and downstream users to ensure that they do not manufacture, place on the market, or use substances adversely affecting human health or the environment. As made clear, in recital 16, that REACH “lays down specific duties and obligations on manufacturers, importers and downstream users of substances on their own, in mixtures and in articles”. In other words, REACH places the burden on economic operators.

Inversely to economic operators, consumers have no obligations under REACH, and they have only one limited right under Article 33(2) of REACH to know whether the products they buy contain harmful chemicals. This obligation concerns retailers (here).

The wetlands restriction is unique as consumers, and not manufacturers, importers and distributors are the addressee of the restriction: Consumers shall neither use nor carry certain consumer products (i.e. lead gunshots) lawfully placed on the EU market in or within 100 metres of wetlands. In effect, consumers are subject to the most severe intervention without having proper administrative and juridical rights under REACH.

The ECHA’s Enforcement Forum (‘Forum’) raised serious concerns on the proposed wetland restriction at the time. It noted, first, that paragraph 67(1), 69(1) and 69(4) of REACH are “addressing manufacture, placing on the market or use by economic actors but not possession of a substance on its own, in a mixture or in an article by a member of the general public”. Second, it did not share the opinion that ‘possession’ (subsequently replaced by the term ‘carrying’) would be part of ‘use’ considering “the definition of “use” in Art.3(24) of REACH which is obviously related to use by economic actors including storage and keeping”. In sum, the Forum advocated that, instead of prohibiting the use, placing on the market of lead gunshots should be restricted, “as enforcement of a restriction for placing on the market is a standard market surveillance activity”, or the EU should examine “if the proposed restriction can be covered under other community legislation”.[1]

The Court of Justice of the EU (‘CJEU’) has not yet clarified the role of consumers under REACH.

• In view of the above, the fundamental question remains whether Articles 1(3) and 68(1) of REACH allow the EU to prohibit consumers from using centre- and rimfire rifle ammunition, which has been lawfully placed on the market, for hunting?

[1] See ECHA Forum For Exchange of Information On Enforcement, Advice on Enforceability on Restriction proposal regarding LEAD GUNSHOT, 2017.

Regarding shooting ranges, ECHA has proposed that the use of lead ammunition may continue if they are able to collect annually at least 90% of discharged lead pellets (shots) and/or when shooting ranges are equipped with bullet traps or defined best practice sand traps (centre- and rimfire ammunition).

Article 1(2) of REACH lays down provisions for the manufacture, placing on the market and use of substances, on their own, in mixtures or in articles. However, waste is specifically excluded from REACH. Article 2(2) of REACH defines ‘waste’ de facto by reference to Article 1(a) of Waste Framework Directive 2006/12/EC as “any substance or object […] which the holder discards or intends or is required to discard” (here). Recital 11 to REACH makes clear that this exclusion is intended to “maintain the incentives for waste recycling and recovery” under EU waste legislation.

The said means that the REACH requirements for substances, mixtures, and articles, like the registration, evaluation, authorisation, and restriction, do not apply to waste.

The fundamental question thus is whether expelled shotgun and rifle projectiles meet the definition of ‘waste’ because shooters discard (i.e. abandon) those pieces of lead and leave them to accumulate in shooting ranges after they have served their intended purpose. Apparently such discarded (i.e. abandoned) lead ammunition is metallic scrap. Analogical to iron, steel and aluminium scrap, lead waste ceases to be qualified as waste when it has undergone a recovery operation and complies with different environmental requirements (here). Article 1(2) of the Waste Framework Directive 2006/12/EC means that insofar as the EU has not acted, the Member States maintain their competences to regulate lead metallic scrap.

• If the answer to the above-mentioned fundamental question is ‘yes’, discharged lead shot pellets and rifle bullets do not fall under Title VIII of REACH, and cannot be subject to the restrictive risk management measures, such as the “annual lead recovery of at least 90%” requirement (for lead gunshots) and/or the obligation to equip shooting ranges with bullet traps or certain best practice sand traps (for lead bullets). In the absence of EU rules relating to end-of-waste status, it is for the Member States to regulate when lead scrap in shooting ranges ceases to be qualified as waste.

The restriction proposal is intended to prohibit, inter alia, placing on the market of lead shot and their use for hunting. SEAC believes that it would be “complementary to the existing restriction on the use of lead gunshot in wetlands (Entry 63 of Annex XVII to REACH)”.

If the proposed restriction will be enacted, common sense and logic entails that the wetland restriction would be obsolete, as its object (i.e. to protect waterfowl in their natural habitats), would be fully covered by prohibiting placing on the market of lead shot.

• If a new REACH restriction on all lead comes into force, the wetlands restriction becomes obsolete. When placing on the market of lead shots for hunting would be prohibited, those articles are neither available for hunters nor can they be used for hunting in all territories including wetlands.