Business Alert - EU
Business Alert - EU |
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Cadmium content in toys becomes subject of European Court ruling Following a question asked by a Dutch Court in a case between the Dutch State and a company called Geharo B.V., the European Court of Justice (ECJ) recently ruled on the complementary nature of two EU Directives: that on the safety of toys, and that on restrictions concerning cadmium (Case C-9/04). In view of their complementary nature, the application to toys of the limit in cadmium bioavailability laid down by Directive 88/378/EEC does not preclude the application to the same toys of the maximum cadmium content laid down subsequently by Directive 91/338/EEC modifying Directive 76/769/EEC. The ECJ therefore held that both sets of rules are cumulatively applicable. Council Directive 88/378/EEC -- which as most Hong Kong traders selling toys and games in the EU know -- concerns the safety of toys. It was adopted with a view to ensuring that consumers, in particular children, are effectively protected against the risks involved in using toys. To that end, the Directive provides that toys may be placed on the market only if they do not jeopardise the safety and/or health of users or third parties when they are used as intended or in a foreseeable way, bearing in mind the normal behaviour of children. The Directive specifies that toys must be so designed and constructed so as to not present health hazards or risks of physical injury by ingestion, inhalation or contact with the skin, mucous tissues or eyes. In particular, the Directive provides that, for the protection of children's health, bioavailability (i.e., the soluble extract of a substance having toxicological significance) resulting from the use of toys must not exceed 0.6 micrograms per day for cadmium. Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to dangerous substances is concerned with restricting the use and marketing of certain dangerous substances. The list of substances and preparations concerned was amended by Council Directive 91/338/EEC, which provides that finished products or components of products manufactured from certain substances and preparations listed in that Directive and coloured with cadmium may not be placed on the market if their cadmium content exceeds 0.01% by mass of the plastic material. Directive 91/338/EEC further specifies that "the new provisions shall not apply to products containing cadmium which are already covered by other Community legislation." The ECJ considered that, although both Directive 88/378 and Directive 91/338 lay down standards as to cadmium content, those standards are separate and correspond to different objectives. The ECJ notes that the maximum content of 0.01% by mass of the plastic material, inserted in Directive 76/769 by Directive 91/338 for products with cadmium-based colours, relates to the maximum amount of cadmium which a product may contain. On the other hand, the maximum standard of 0.6 micrograms of bioavailability established in Directive 88/378, relates to the capacity of a substance, in this instance that of cadmium, to be diffused and absorbed by the body. The ECJ further noted that the fact that the standards laid down by Directives 88/378 and 91/338 are defined by reference to separate reference values is explained by the different objectives of those Directives. Directive 88/378, by establishing a daily limit for cadmium bioavailability, seeks to protect the user of a toy against the risks connected with the chemical properties of the product at the time of use, whereas Directive 91/338, by limiting the amount of cadmium in a product, is part of a policy which seeks to protect the general population against the dispersion of cadmium into the environment. The ECJ concluded that the fact that Directive 91/338 provides that "the new provisions shall not apply to products containing cadmium which are already covered by other Community legislation" cannot be understood as precluding any cumulative application of standards governing cadmium content. Therefore, in view of their complementary nature, the application to toys of the limit in cadmium bioavailability laid down by Directive 88/378 does not preclude the application to the same toys of the maximum cadmium content laid down subsequently by Directive 91/338. From a practical point of view, this ruling from the ECJ requires from Hong Kong toy manufacturers, that the maximum concentration values for cadmium be applied cumulatively. It also implies that, in respect of the other substances governed by both Directive 88/378 and Directive 76/769 (i.e., arsenic, chromium, lead and mercury) traders comply with both sets of rules, i.e., the rules governing bioavailability under Directive 88/378/EEC and the rules governing dangerous substances of Directive 76/769/EEC -- once again, cumulatively. | ||||||||||||||||||||||||||||||||||
