Question: According to article 49.3 of CLP, can a competent authority request the exact composition of a mixture in order to verify the classification thereof or the producer can provide the competent authority at his discretion with a range of concentrations for the constituents of a mixture?
Ιn short, yes a competent authority can request the exact composition of a mixture to verify the classification. However, the company might not give it… Please see the below observations.
The wording of Art. 49(3) CLP, as read together with Art. 49(1) CLP, supports the view that the competent or enforcement authority can request ‘any information’ that the supplier has used for the purposes of classification and labelling under CLP. We understand that this information can also be the exact composition of a classified mixture. This reading is also supported by the purpose of CLP (Art. 1(1), high level of protection of human health and the environment) and the Member States’ general obligation to enforce the CLP provisions (Art. 46(1) CLP).
The provision does not contain any confidentiality clause (compare to Art. 45(2) CLP).
However, the national authorities might not always need the exact composition. A range of concentrations could sometimes be sufficient for the purpose of enforcement (or other relevant CLP purpose). There could be proportionality arguments taken into account in this respect, even if the wording of Art. 49(3) allows a strict reading.
Please also note the second subparagraph of Art. 49(3) under which the national authority must request the data from ECHA directly if ECHA has it based on REACH registrations or CLP notifications.
The Forum has discussed whether an inspector has the right to ask for “any information” that is needed for enforcement. All Forum members indicated that NEAs have the right to ask any information that they need to enforce the specific duty.
Certainly information is needed on all constituents and their concentrations that affect classification. So, it is feasible that dutyholder could refuse to disclose information on constituents that do not affect classification.
As said, in some cases a range could be sufficient to determine if the classification is correct, but that depends on the specific case – what the substance is, what levels trigger classification and how broad the range is. For example, a range of 0-1% may be sufficient for some substances, but for other types of substances a broader range could be allowed. It may be that if the information is too vague, the inspector may request exact concentration information for the constituents that affect classification.
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