From chemicals, biocides and pesticides, to consumer products, tobacco, vaping products and food, our next thought leader thrives in a challenging environmental law landscape, and when it comes to EU prohibitions on chemicals, EU trade barriers and now Brexit, Marcus Navin-Jones, Partner at the Brussels office of niche law firm Keller and Heckman LLP, is well placed to assist.
Here Marcus talks to Lawyer Monthly about his and the firm’s thought leadership in the environmental law landscape, in particular the kind of cases he deals with, the implications of Brexit and the EU in this legal segment, and about the laws that he would like to see changed for the better.
What environmental issues surround most of the cases you deal with?
Over the past 6 years or more, I have built a reputation primarily in the field of chemical defence, i.e. in defending the sale and use of certain chemicals in the EU. The frontline in chemical defence has been leading appeal cases before the European Chemicals Agency (ECHA) Board of Appeal (BOA) in Helsinki, Finland.
Over the past year or so, I have successfully led industry appeals in a number of cases before the ECHA BOA – to obtain an annulment of the requirements initially imposed by the ECHA. The Appellants included: Dow Corning and others (A-017-2015); Huntsman/BASF (A-012-2014); and TPP Registrants (A-018-2015).
Before that, I assisted on the first appeal regarding REACH Substance Evaluation, which established the ability for REACH registrants to bring so-called group or collective appeals before the ECHA BOA. This had never happened before.
I also counselled, and led the argumentation in the seminal Honeywell case – which was the first case to proceed to Oral Hearing before the ECHA BOA.
In addition to the appeal cases before the ECHA BOA, I increasingly advise and take cases before the EU Courts – such as the current Esso Raffinage case before the General Court (T/283-15).
Consumer products – I advise on product safety and product liability issues regarding consumer and other products, particularly consumer products that are directly impacted by EU chemical legislation such as:
- e-cigarettes and e-liquids;
- textile/leather/fur products;
- cryogenic products;
- nano enabled products;
- GMO products;
- Biocidal products, treated articles and aversive products.
EU and UK market access and barriers to trade (including BREXIT issues) – Having worked at the European Commission on issues regarding free movement of goods, my background is in securing market access for goods entering the EU Single Market and other European markets. Following the UK referendum on EU membership, I increasingly advise on Brexit issues and on issues regarding free movement of goods issues and barriers to trade.
What are the common avenues of resolution for these types of cases? Are there particular complexities involved?
EU chemical law is particularly complex. With scientists that work within K&H itself, we often advise on issues outside the domain of consultants or other law firms. Regarding the Chemical Defence work, we experience an increasing desire to settle cases before an ECHA BOA decision.
Have there been any consequences in your environmental law work pertaining to the recent Brexit vote and the linked EU law?
Since June I have spoken widely on Brexit and its impact on the chemical industry in front of different audiences, including CEFIC (the European Chemical Industry Council) members, but also at conferences in Washington DC, US; Toronto, Canada; Nice, France; and elsewhere. Since the 23rd June 2016 referendum, there has been significant increase in the number of questions regarding Brexit not just from UK companies, but also from US and other companies.
In the short term, there may be divergences in the interpretation and enforcement of EU law in the UK. In the longer term, the impact on UK Chemical legislation could, potentially, be significant. The impact on EU chemical legislation may be comparatively smaller but, potentially, no less important.
As a thought leader, what Belgian or EU environmental legislation do you believe could/should be amended in the near future?
One of the core issues for the chemical industry on both sides of the Atlantic will be the extent to which TSCA reform (in particular the Frank R. Lautenberg Chemical Safety for the 21st Century Act amending the US Toxic Substances Control Act) will lead, or not, to a convergence of chemical policy with EU law in the future. In particular, one of the questions being whether risk management measures adopted in the EU will also be adopted in the same way, and relate to the same substances, in the US and vice versa. Where regulatory action is considered in one jurisdiction and then rejected on valid grounds, it would be helpful to have a similar and consistent approach elsewhere.
In the EU, the Court Ruling in case C-106/14 regarding calculation of the 0.1% threshold weight by weight presents significant practical and pragmatic challenges for industry and law enforcement bodies in practice. Improvements could be made to the BPR, REACH and related legislation such as the REACH Implementing Regulation on Joint Submission and Data Sharing, etc. For example, implementation of the requirements regarding vertebrate animal testing only as a last resort, could be improved. The revision of the GPSD will likely be of importance to downstream users and therefore the upstream suppliers. The New Tobacco Products Directive contains requirements relating to e-cigarette and e-liquid products that are, arguably, not enforceable.
As a thought leader, how are you helping to change the European/Belgian environmental legal landscape, in terms of chemical regulations, waste, or packaging?
ECHA policy and approach to, for example, REACH Dossier and Substance Evaluation, has changed in response to the cases brought before the ECHA Board of Appeal – both in those cases where the ECHA BOA has issued a decision in favour of industry, but also in those cases where the ECHA BOA has not issued a decision, or issued a decision in favour of ECHA. I currently have another case before the ECHA Board of Appeal relating to Substance Evaluation and the extent to which REACH registrants can provide sensitive information on downstream exposure and uses (SI Group-UK Ltd and Others, A-006-2016), giving the ECHA Board of Appeal the opportunity to positively influence and clarify ECHA policy.
How does being secretary, and founder, of the EU Chemicals Board of Appeal Forum contribute towards your thought leadership in this legal segment?
The EU Chemicals Board of Appeal Forum was established as a means of exchanging information on ECHA BOA decision-making. It is not associated with ECHA, with one particular trade association or with one particular company. It is therefore a truly independent group of experts primarily populated with academics and other commentators. Their views and insights, particularly with the insights from other Boards of Appeal, is particularly interesting in understanding how the ECHA Board of Appeal compares to other BOAs in the EU, and the procedural and other requirements the ECHA BOA should therefore adhere to. I have also convened conferences and working groups, lectured and published academic pieces on the ECHA Board of Appeal. A Legal Review of EU Boards of Appeal in Particular the European Chemicals Agency Board of Appeal .
As a thought leader, do you have a mantra or motto you live by in service to your clients?
I believe there should be a direct correlation between our client’s success and our success as a firm. Success can be difficult to define but, in essence, I want every client to be bigger, stronger and better established in the future, than they are today – and I want that success to be a direct result of what we, particularly I, have had direct involvement with. Our success is our client success.