Research and analysis

Review of Article 33, Duties on suppliers to provide information and consumers’ rights to request information on Substances of Very High Concern (SVHCs) in articles

Published 29 June 2023

Applies to England, Scotland and Wales

Executive summary

Under Article 138(8) of UK REACH (Registration, Evaluation, Authorisation and restrictions of CHemicals), the Secretary of State must review Article 33 within 18 months of the end of the transition period.

Article 33 places a duty on suppliers of articles to pass down the supply chain information about any substances of very high concern (SVHCs) present in those articles above a set concentration. Consumers have a right to ask whether articles contain such SVHCs, and suppliers then have a duty to provide the information within 45 days.

Earlier reviews of Article 33 have been EU wide. As such, it has been necessary to collect data specific to Great Britain in order to obtain an understanding of how well Article 33 is working in Great Britain. This information was drawn from online surveys to consumers of articles, who have rights under Article 33, and suppliers of articles, who have responsibilities. The surveys were designed to answer questions about how Article 33 was working in practice and whether it should be extended to articles which contain other substances than SVHCs.

This report presents the main findings and conclusions from the review of Article 33.

Supplier survey

The survey was administered through a link in the Health and Safety Executive’s UK REACH eBulletin. It was promoted through the eBulletin and through Defra’s stakeholder networks (including trade organisations).

In total 129 people completed the survey. This is not a representative sample but, in the absence of other British specific data on this subject, the findings provide valuable insights to help inform the review of Article 33 when analysed alongside results from the consumer survey.

Results from the suppliers who participated in the survey demonstrated a considerable level of understanding of, and compliance with, their obligations under Article 33. Almost all respondents knew of their duty to pass information on SVHCs in articles down the supply chain and what that information should be. Nearly three quarters were also aware of the 45-day deadline to meet consumer requests.

The majority of respondents saw benefits in the existing arrangements, although it was also flagged as a burden. There was no consensus that extending the duty to other hazardous chemicals would have benefits for human health and the environment.

Consumer survey

The consumer survey was administered as part of an online panel survey. In total 3,667 individuals completed the survey.

The survey showed a high level of public interest in chemical safety. Although nearly two thirds of respondents were interested in finding out more about chemicals in products that they use, only just over one quarter knew of their right to request information on SVHCs in those products and only 13% had exercised that right.

In nearly three quarters of occasions respondents received all the information that they had requested. In most cases this was received within the 45-day legal deadline, and the recipients considered that it was useful in making decisions on safe use. This indicates that suppliers who were asked for information were generally able to comply with their duties under Article 33(1), which is consistent with the results from the suppliers survey.

Main conclusions

The level of consumer awareness of their rights under Article 33 was low and the extent to which these rights were exercised was even lower. However, the results also show that a large proportion of consumers were concerned about the chemicals in the products they use and were interested to know more about this.

Results from both surveys demonstrate a high degree of supplier compliance with their duties under Article 33. Furthermore, results from the supplier survey indicate that when asked for information suppliers provide more information than their duty under Article 33 requires.

However, there were some areas where there was a degree of supplier uncertainty around Article 33. One of these areas was awareness of the 45-day deadline to provide consumers with the information they have requested. Another important area was around the degree of uncertainty many suppliers had on the presence of hazardous substances in the articles they supply.

Results from the supplier survey suggest that whilst there were perceived advantages of the duty, it was also perceived as burdensome for a large proportion of businesses.

For a number of reasons, the findings do not provide sufficient evidence to consider an extension of Article 33 to other hazardous chemicals at this time. There may be several reasons for this:

• the limitations of the evidence
• a reasonable proportion of suppliers say they already go beyond their duties under Article 33
• there are areas of uncertainty in the current application of Article 33
• complying with the duty as it stands is burdensome to suppliers

An extension of the duty could increase the burden.

Before considering whether to extend the scope of Article 33, further work would be needed to gather a stronger evidence base from suppliers with wider consultation with suppliers and other stakeholders to inform any decision. Consideration would need to address the balance between the business benefits, the objectives of REACH for protection of human health and the environment, and the burden of information transfer duties on suppliers.

Further work

This review has signalled some areas where further work on the effectiveness of Article 33 may be beneficial:

• Article 33 carries an assumption that suppliers have or can acquire the information to be able to respond to consumer requests, but for those further down the supply chain this depends on them receiving effective information and their effective management of such information. There may be benefit in further investigation of how well information passes down the supply chain as this underpins the effectiveness of Article 33. Assessing different stages of the supply chain could also involve obtaining input from retailers about the information they receive from their suppliers as this was a perspective missing from this review.

• There may be benefits in strengthening the other aspects of the evidence base on how well Article 33 is working. This could include doing some more in-depth work with consumers to understand what more information they would like on chemicals and how they use what they currently receive.

• There may also be benefits in considering how to overcome the low consumer awareness of their rights under Article 33 and to increase take-up.

In memory of Helen Pontier whose dedicated work contributed so much to the review and this report.

1. Introduction

This report has been completed in compliance with the duty placed on the Secretary of State under Article 138(8) of REACH. This states that, within 18 months of the end of the EU Exit transition period, they shall carry out a review to assess whether or not to extend the scope of Article 33 to cover other dangerous substances, taking into account the practical experience in implementing that Article.

REACH Article 33:

“1. Any supplier of an article containing a substance meeting the criteria in Article 57 and identified in accordance with Article 59(1) in a concentration above 0.1% weight by weight (w/w) shall provide the recipient of the article with sufficient information, available to the supplier, to allow safe use of the article including, as a minimum, the name of that substance.

“2. On request by a consumer any supplier of an article containing a substance meeting the criteria in Article 57 and identified in accordance with Article 59(1) in a concentration above 0.1% weight by weight (w/w) shall provide the consumer with sufficient information, available to the supplier, to allow safe use of the article including, as a minimum, the name of that substance.

“The relevant information shall be provided, free of charge, within 45 days of receipt of the request.”

The report outlines and discusses the methodology used for the review (Section 2). It then goes on to look at the main findings and conclusions from the supplier survey and the consumer survey (Sections 3 and 4).

All survey information was gathered between February and March 2022.

2. Method

2.1. Literature review

A literature review was conducted using online searches for information about the application of Article 33, including the equivalent Article 33 review in the EU. This was to gather existing insights about how it has been applied and tested. It also sought insights on whether the practical operation of Article 33 might be improved or extended to other hazardous substances.

2.2. Web-based surveys

The main aim of using surveys was to develop an understanding of how Article 33 worked in practice from the perspective of Great Britain, including how duties and rights were being exercised. The perspective of earlier EU reports was EU-wide rather than Great Britain.

Three survey groups were identified as consumers (who have rights), suppliers and retailers (who have duties). Three different surveys were designed to address each group according to their legal rights and duties. The methodology for the supplier and consumers surveys is briefly described in the remainder of this section. Details of the methodology and survey results can be viewed on Defra Science Search .

The retailer survey, which was designed to collect evidence from those at the end of the supply chain selling directly to consumers, received too low a response to allow meaningful analysis and inclusion in the report. However, it should be noted that nearly two thirds of the suppliers who responded to the survey indicated that they were both suppliers and retailers.

2.2.1. Supplier survey

The primary aim of the supplier survey was to test how the supplier duty in Article 33 was working in practice, whether suppliers were able to meet their duties, and to determine whether they felt there would be a benefit if the duty was extended to other hazardous chemicals. An additional aim was to test what suppliers thought about the place of Article 33 within the wider aims of chemical regulation.

The survey ran from 7 February until 9 March 2022. The target audience were suppliers of articles containing chemicals. It was administered through a link in the Health and Safety Executive’s UK REACH eBulletin. It was promoted through the eBulletin and through Defra’s stakeholder networks (including trade organisations).

In total 129 people completed the survey.

Critique of the methodology:

The exact size of the target population is unknown, but 129 responses is not considered a representative sample. The eBulletin reaches 72,000 individuals with an interest in UK REACH, but it is not known how many of these are suppliers of chemicals. Additionally, those suppliers subscribing to the eBulletin are potentially biased due to their active interest in the regulation of chemicals. Finally, the survey was reliant on suppliers’ accurate reporting of their experiences of Article 33, which when talking about compliance could produce some social desirability bias. Nevertheless, in the absence of other British specific data on this subject, the findings provide valuable insights to help inform the review of Article 33 when analysed alongside results from the consumer survey.

2.2.2. Consumer survey

The aim of the consumer survey was to test if consumers understood and used their rights to request information from suppliers about SVHCs in products that they had purchased and if information requests were being met by suppliers within the required 45 days with sufficient information, which as a minimum should provide the name of the SVHC. The term “product” was used in this survey instead of the legal term “article” as it was considered that consumers might have difficulty relating to the technical nature of the legal definition of “article” in the regulation, which is narrower than the standard usage.

Defra commissioned Kantar Public (a market research agency) to administer the survey using their online omnibus panel survey. The survey ran from 6 January until 17 January 2022. There were 3,667 responses to the survey, drawn from a demographically representative sample of the UK.

Critique of the methodology:

The use of an online panel survey is a quick and efficient way of reaching a large group of survey participants. Such an approach facilitates the ability to gather preliminary information on an issue, which is the aim of this research. However, the approach is susceptible to bias, which means the results provide an indication of national knowledge and experience, rather than allowing for firm generalisations.

2.2.3. Reporting of results

Due to rounding, some totals may not correspond with the sum of the separate figures. In addition, for some questions participants could select more than one option, so totals may not add to 100%.

The base sample sizes are reported for each of the questions asked. The base sizes of participant responses vary. This is because some of the questions were asked of all participants, but some were asked of certain participants only, based on their responses to earlier questions in the survey. In addition, the questions in the survey were not mandatory.

Some of the questions in the report refer to survey participants, for example when they relate to supplier or consumer attitudes to, or understanding of, Article 33. Others refer to occasions, for example the number of occasions consumers exercised their rights under Article 33, or how suppliers responded to the individual occasions when they received requests for information on SVHCs. Respondents were asked to recall up to 5 occasions. This is important to report as experience could vary depending on the individual occasion.

3. Main findings and conclusions from the supplier survey

3.1. Awareness and understanding of Article 33

The suppliers who participated in the survey demonstrated a high level of awareness and understanding of their duties under Article 33. 98% of 129 respondents knew of their duty to pass information on SVHCs in articles down the supply chain, 97% of 126 respondents knew the minimum information requirement was the name of the SVHC, and 100% of 125 respondents knew what the threshold concentration was for communication of information on SVHCs in articles. At 73%, a smaller proportion of 125 respondents were aware of the 45-day deadline to meet consumer requests.

3.2. Practical experience of applying Article 33

69% of 129 respondents supplied articles containing SVHCs. 72% of these were certain that they supplied articles containing SVHCs above the 0.1% weight by weight threshold concentration and a further 10% thought that they did.

86% of 73 respondents who supply, or have supplied, articles above the 0.1% weight by weight concentration supplied the name of SVHCs always or most of the time, and 62% supplied additional information beyond the minimum requirement of the name.

Just under a third (32%) of the 128 respondents had been asked by consumers for information about SVHCs in articles. Of the respondents that had been asked, 68% had been asked five or more times over the last three years. This illustrates that, only a minority of suppliers received requests for information from consumers, many of those that did received requests reasonably frequently.

According to the suppliers who said consumers had requested information from them, on 99% (166) of occasions the name of the SVHC was supplied to the consumer and on 97% (163) of occasions information was supplied within the statutory 45-day period.

These results indicate that, according to the suppliers that responded to the survey, there is a high degree of compliance with the duty.

On the whole, respondents felt reasonably informed about the presence of SVHCs in the articles they supply, although a degree of uncertainty was evident. 29% of 126 suppliers felt very well informed about the presence of these chemicals in the articles they supply, 53% felt quite well informed, 17% felt not very well informed and 2% felt not at all informed. Whilst this is positive, the effectiveness of Article 33 does rely on suppliers feeling confident that they know about the chemicals in the articles they supply. A larger proportion of the sample feeling very well informed about the chemical composition of their products would be preferable. A factor which might benefit from further investigation is whether the response was determined by the supplier’s position in the supply chain.

A range of methods were used to calculate the weight-by-weight concentration of SVHCs in articles. These included getting the information from suppliers to companies calculating the concentration themselves.

3.3. Attitudes towards Article 33

There was frequently a positive attitude towards Article 33. For example, 84% of 126 suppliers either somewhat agreed or strongly agreed that providing recipients with information on SVHCs is an important part of supplying articles responsibly. 69% of the 70 that supply articles with SVHCs above the 0.1% threshold either strongly agreed or somewhat agreed that it strengthened their reputation as a supplier.

However, it is clear from the results that complying can be burdensome for many of the 70 respondents. For example:

• 64% either strongly agreed or somewhat agreed that providing recipients with information on SVHCs is a burden to their company
• 62% either strongly agreed or somewhat agreed that providing recipients with information on SVHCs is difficult to comply with
• 42% either strongly agreed or somewhat agreed that it is too expensive to comply with

3.4. Extending the scope of Article 33

Participants were asked whether they had been asked for additional information beyond the identity of any SVHCs in the articles they supply, such as information on other hazardous chemicals. 54% (67) of 125 suppliers had been asked and of these 70% said they had provided the information requested. This suggests that some suppliers are going beyond the statutory requirement of Article 33 when requested. It was not possible, however, to corroborate the findings with the consumer survey.

Respondents were asked whether they felt if an extension in the scope of the duty would be beneficial to human health and the environment. 46% of 124 respondents felt there would be such benefits, 28% did not, and 26% did not know.

3.5. Conclusions from the supplier survey

The relatively low sample base and potential bias in the sample need to be recognised when drawing conclusions from the supplier survey. Analysis in combination with the results with the consumer survey allows for more reliable conclusions.

Nevertheless, the following main conclusions can be derived from the supplier survey:

• Suppliers who responded to the survey generally maintain that they were aware of their duty, took action to position themselves to comply with it, and complied with what they were asked to do. However, just over a quarter of the sample were unaware of the 45-day deadline to provide consumers with the information they have requested.
• The effectiveness of Article 33 relies on suppliers feeling confident that they know about the chemicals in the articles they supply. There was a reasonable degree of uncertainty amongst respondents of the presence of SVHCs in the articles they supplied. This suggests that there may be a need to improve information throughout the supply chain.
• Although only a minority of the respondents (32%) had been asked by consumers to provide information on SVHCs, many of these had been asked frequently for information.
• When asked for information, a large proportion of suppliers went beyond the legislative requirements in Article 33 and provided more information than was required.
• Whilst the duty had perceived advantages, it was also perceived as burdensome for a large proportion of businesses that had been called on to provide information.
• For a number of reasons, the findings do not provide sufficient evidence to consider an extension of Article 33 to other hazardous chemicals at this time. Factors include:
  • the limitations of the evidence
  • a reasonable proportion of suppliers say they already go beyond their duties under Article 33
  • there are areas of uncertainty in the current application of Article 33
  • complying with the duty as it stands is burdensome to suppliers

An extension of the duty could make it more burdensome.

• Before extending the scope of Article 33, further work would be needed to gather a stronger evidence base from suppliers, with wider consultation with suppliers and other stakeholders. Consideration would need to address the balance between the objectives of REACH for protection of human health and the environment, the burden of information transfer duties on suppliers, and potential business benefits.

4. Main findings and conclusions from the consumer survey

4.1. Consumer views about the chemical regulatory context

The consumer survey showed that 89% of 3,667 respondents had expectations that chemicals regulation would ensure that the products they use will not cause chemical-related harm. 54% indicated they were concerned or very concerned about the safety of chemicals in products that they use, and 64% were interested in finding out more about chemicals in products that they use.

This suggests that there is a reasonable degree of consumer interest in and concern about chemicals in the products they use, but also a strong degree of consumer trust in chemical regulation.

4.2. Consumer awareness and use of their rights

The results indicate that only just over a quarter (27%) of the 3,667 respondents were aware of the right to ask for information on SVHCs in the articles they buy.

Exercise of the rights is even lower, with 87% of the 3,667 respondents saying they had never asked a business for information about SVHCs in the products they have purchased.

4.3. Experience of consumers in using their rights

The 483 consumers who had requested information on SVHCs were asked about their experiences for each occasion (up to a total of 5 occasions) they had requested such information over the last 3 years. There was a total of 1,164 occasions where information was requested. For the relevant questions, the survey used the number of occasions as the sample base to provide statistics.

Respondents were asked whether they received the information on the articles they requested. On 73% of the 1,164 occasions the information requested was received, on 22% of occasions some but not all the requested information was received, and on 6% of occasions no information was received. On 90% of occasions out of 1,098 the information was received within the statutory 45 days.

On 85% of 1,084 occasions the recipient considered that the information was useful in informing safe use of the product.

These results indicate that suppliers who were asked for information were able to comply with their duties under Article 33(1). This is consistent with the results from the supplier survey.

4.4. Conclusions from the consumer survey

The main conclusions from the consumer survey are that:

• The level of consumer awareness of their rights under Article 33 was low and the extent to which these rights were exercised was even lower. However, the results also show that a large proportion of consumers were concerned about the chemicals in the products they use and were interested to know more about this.

• There would be value, therefore, in increasing the level of consumer understanding and use of the rights in Article 33(2). This would not involve legislative changes but there might be guidance to improve awareness to help consumers exercise their rights and suppliers to comply with their duties.

• On the majority of occasions, consumers were successful in using their rights to receive information and suppliers were able to meet their duties, including providing information within the 45-day deadline. It can be inferred that consumers had made clear requests and that suppliers held the information that they needed to comply.

• The 45-day statutory deadline is practical for suppliers to meet.

• There were occasions when information was not received, it was not received within 45 days, or the consumer did not consider that it helped to inform safe use. However, the number of these occasions was relatively low.

• Where no information was received it is not possible to see the reason. For example, it could be a result of non-compliance or because the articles did not contain SVHCs, in which case there is no obligation to respond to information requests from consumers.

• Most consumers who had received information considered that it was useful in making decisions on safe use, which is one of the purposes of Article 33. Our conclusion is that the rights and duties in Article 33 are contributing to safe use, although the survey did not indicate how consumers were using the information to support safe use.

• Our conclusion is that it would be more productive to improve use of the existing consumer rights in Article 33 than extend its scope to additional substances.

5. Definitions

Actor in the supply chain: All manufacturers, importers, or downstream users in a supply chain of a substance.

Article: An object which during production is given a special shape, surface or design, which determines its function to a greater degree than does its chemical composition.

Placing on the market: Supplying or making available, whether in return for payment or free of charge, to a third party. Import shall be deemed to be placing on the market.

Recipient of an article: An industrial or professional user, or a distributor, being supplied with an article, but does not include consumers.

Substance: A chemical element and its compounds in the natural state or obtained by any manufacturing process, including any additive necessary to preserve its stability and any impurity deriving from the process used, but excluding any solvent which may be separated without affecting the stability of the substance or changing its composition.

Substances of Very High Concern (SVHC): A substance added to the candidate list due to its hazardous properties. SVHCs are identified according to the following categories:

• CMRs (substances that are carcinogenic, mutagenic or toxic for reproduction)
• PBTs (substances that are persistent, bioaccumulative and toxic for the environment)
• vPvBs (substances that are very persistent and very bioaccumulative)
• substances of equivalent concern (such as endocrine disruptors or sensitisers)

The duties and rights in Article 33 apply only when a substance is identified as a SVHC and included in the Candidate List.

Supplier: Any manufacturer, importer or downstream users or distributor placing on the market a substance, on its own, in a mixture or in an article.

There is no legal definition of ‘consumer’. For the purposes of our consumer survey, we adopted a definition of consumers as individuals who purchase goods or services for personal use.

The legal definition of ‘article’ was not considered to be something which the general public, as consumers, would be able to relate to for the purposes of the consumer survey. This is because the legal definition is different to the general meaning of the word. The term ‘product’ was used instead. The term ‘article’ was used for the supplier survey because suppliers should be familiar with the term due to their legal obligations.