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DECISION OF THE BOARD OF APPEAL
OF THE EUROPEAN CHEMICALS AGENCY
29 April 2013
(Compliance check of a registration – Testing involving vertebrate animals –
Principle of last resort - Section 8.6.4 of Annex X– Discretion of the Agency Principle of proportionality)
of the case
Honeywell Belgium N.V.
Messrs Herbert Estreicher and Marcus Navin-Jones
Keller and Heckman LLP
DuPont de Nemours (Nederland) B.V.
Mr Terrence A. Vandeveld and Ms Teny Nicoghossian
Du Pont de Nemours International Sàrl
European Coalition to End Animal Experiments (ECEAE)
Dr Katy Taylor
CCH-D-0000001396-72-03/F of 22 March 2011 adopted
by the European Chemicals Agency (hereinafter the
‘Agency’) pursuant to Article 41 of Regulation (EC) No
1907/2006 of the European Parliament and of the Council
concerning the Registration, Evaluation, Authorisation
and Restriction of Chemicals (OJ L 396, 30.12.2006, p. 1;
corrected by OJ L 136, 29.5.2007, p. 3; hereinafter the
THE BOARD OF APPEAL
composed of Mercedes ORTUÑO (Chairman), Andrew FASEY (Technically Qualified
Member and Rapporteur) and Barry DOHERTY (Legally Qualified Member)
Registrar: Sari HAUKKA
gives the following
The REACH Regulation
Article 1(1) of the REACH Regulation provides:
‘The purpose of this Regulation is to ensure a high level of protection of human
health and the environment, including the promotion of alternative methods for
assessment of hazards of substances, as well as the free circulation of substances
on the internal market while enhancing competitiveness and innovation.’
Article 13(2) and (3) of the REACH Regulation provides:
‘2. […] The Commission, following consultation with relevant stakeholders, shall,
as soon as possible, make a proposal, if appropriate, to amend the Commission
Regulation on test methods adopted in accordance with the procedure referred to
in Article 133(4), and the Annexes of this Regulation, if relevant, so as to replace,
reduce and refine animal testing. […]
3. Where tests on substances are required to generate information on intrinsic
properties of substances, they shall be conducted in accordance with the test
methods laid down in a Commission Regulation or in accordance with other
international test methods recognised by the Commission or the Agency as being
Article 25(1) of the REACH Regulation provides:
‘In order to avoid animal testing, testing on vertebrate animals for the purposes of
this Regulation shall be undertaken only as a last resort. It is also necessary to
take measures limiting duplication of other tests.’
Article 41(1)(a) and (3) of the REACH Regulation provides:
‘1. The Agency may examine any registration in order to verify any of the
(a) that the information in the technical dossier(s) submitted pursuant to Article
10 complies with the requirements of Articles 10, 12 and 13 and with Annexes
III and VI to X;
3. On the basis of an examination made pursuant to paragraph 1, the Agency
may, within 12 months of the start of the compliance check, prepare a draft
decision requiring the registrant(s) to submit any information needed to bring the
registration(s) into compliance with the relevant information requirements and
specifying adequate time limits for the submission of further information. Such a
decision shall be taken in accordance with the procedure laid down in Articles 50
Article 51(1) to (7) of the REACH Regulation provides:
‘1. The Agency shall notify its draft decision in accordance with Articles 40 or 41,
together with the comments of the registrant, to the competent authorities of the
2. Within 30 days of circulation, the Member States may propose amendments to
the draft decision to the Agency.
3. If the Agency does not receive any proposals, it shall take the decision in the
version notified under paragraph 1.
4. If the Agency receives a proposal for amendment, it may modify the draft
decision. The Agency shall refer a draft decision, together with any amendments
proposed, to the Member State Committee within 15 days of the end of the 30day period referred to in paragraph 2.
5. The Agency shall forthwith communicate any proposal for amendment to any
registrants or downstream users concerned and allow them to comment within 30
days. The Member State Committee shall take any comments received into
6. If, within 60 days of the referral, the Member State Committee reaches a
unanimous agreement on the draft decision, the Agency shall take the decision
7. If the Member State Committee fails to reach unanimous agreement, the
Commission shall prepare a draft decision to be taken in accordance with the
procedure referred to in Article 133(3).’
Section 8.6.4 of Annex X to the REACH Regulation provides:
‘Further studies shall be proposed by the registrant or may be required by the
Agency in accordance with Articles 40 or 41 in case of:
toxicity of particular concern (e.g. serious/severe effects), or
indications of an effect for which the available evidence is inadequate for
toxicological evaluation and/or risk characterisation. In such cases it may also
be more appropriate to perform specific toxicological studies that are designed
to investigate these effects (e.g. immunotoxicity, neurotoxicity), or
particular concern regarding exposure (e.g. use in consumer products leading
to exposure levels which are close to the dose levels at which toxicity is
Commission Regulation (EC) No 440/2008
Section 188.8.131.52 of test protocol B.29 on sub-chronic inhalation toxicity study 90day repeated inhalation dose study using rodent species which is set out in
Commission Regulation (EC) No 440/2008 of 30 May 2008 laying down test
methods pursuant to the REACH Regulation (OJ L 142, 31.5.2008, p. 1) provides:
Unless there are contra-indications, the rat is the preferred species. Commonly
used laboratory strains of young healthy animals should be employed. […] Where
a subchronic inhalation study is conducted as a preliminary to a long-term study,
the same species and strain should be used in both studies.’
OECD Guideline 413 Subchronic Inhalation Toxicity: 90-Day Study
OECD (2009), Test No. 413: Subchronic Inhalation Toxicity: 90-day Study (OECD
Guidelines for the Testing of Chemicals, Section 4, OECD Publishing) addresses at
point 6 the selection of animal species and provides:
‘Healthy young adult rodents of commonly used laboratory strains should be
employed. The preferred species is the rat. Justification should be provided if
other species are used’.
Directive 2010/63/EU of the European Parliament and of the Council
Article 13(1) and (2) of Directive 2010/63/EU of the European Parliament and of
the Council of 22 September 2010 on the protection of animals used for scientific
purposes (OJ L 276, 20.10.2010, p. 33) provides:
‘Choice of methods
1. Without prejudice to national legislation prohibiting certain types of methods,
Member States shall ensure that a procedure is not carried out if another method
or testing strategy for obtaining the result sought, not entailing the use of a live
animal, is recognised under the legislation of the Union.
2. In choosing between procedures, those which to the greatest extent meet the
following requirements shall be selected:
(a) use the minimum number of animals;
(b) involve animals with the lowest capacity to experience pain, suffering, distress
or lasting harm;
(c) cause the least pain, suffering, distress or lasting harm;
and are most likely to provide satisfactory results’.
SUMMARY OF THE FACTS
On 11 December 2009, the Appellant submitted a registration for the substance
2,3,3,3-tetrafluoropropene (hereinafter ‘the Substance’) at the tonnage level of
1,000 tonnes or more per year.
In the registration dossier submitted the Appellant provided three repeated dose
toxicity studies in the rat (2, 4 and 13 weeks’ exposure) pursuant to Sections
8.6.1 and 8.6.2 of Annexes VIII and IX to the REACH Regulation, a pre-natal
developmental toxicity study and a two-generation reproductive study in the rat
pursuant to Section 8.7.2 of Annex IX and Section 8.7.3 of Annex X respectively,
as well as a pre-natal developmental toxicity study in the rabbit pursuant to
Section 8.7.2 of Annex X.
The toxicological hazard assessment, prepared by the Appellant on the basis of
the variety of rat studies present in the dossier (ranging from acute toxicity,
through sub-chronic toxicity to pre-natal and multi-generation toxicity assays),
showed that the Substance has fairly low potency in the rat. However, the results
in the robust study summary of the pre-natal developmental toxicity study in the
rabbit via inhalation showed a potent toxicity, with lethality at doses much lower
as compared with rats.
On 26 April 2010, the Agency initiated a dossier compliance check of the
Appellant’s registration dossier for the Substance. Further to this, the Agency
prepared a draft decision pursuant to Article 41(3) of the REACH Regulation by
which its intention was to require the Appellant to submit, pursuant to Articles
10(a)(vi) and (vii), 12(1)(e), 13(3), 41(1)(a) and 41(3), as well as Section 8.6.4
of Annex X to the REACH Regulation, inter alia a 90-day repeated dose toxicity
study in the rabbit by inhalation (Test Method (‘TM’) B.29 of Regulation (EC) No
440/2008 or OECD Test Guideline (‘TG’) 413). The Agency draft decision further
requested that the study protocol should be modified with additional clinical
pathology and histopathological evaluations to examine effects on reproductive
organs, specifically as described in OECD TG 416 and in particular paragraphs 29
to 32, 39 and 41 to 45 thereof. The modified repeated dose toxicity study in the
rabbit by inhalation as described in this paragraph is hereinafter referred to as
The draft decision gave the following reasons for requiring the Study:
The death of pregnant rabbits in the Appellant’s prenatal developmental
toxicity testing on rabbits satisfies the criterion ’toxicity of particular
concern’ as set out in Section 8.6.4 of Annex X;
The available evidence is inadequate for toxicological evaluation and/or risk
characterisation because the data submitted shows that the rabbit is more
sensitive to toxicity from the Substance as compared with the rat; and
The available information on the toxicity of the Substance on the rabbit is
inadequate for toxicological evaluation and/or risk characterisation.
On 19 August 2010, the Agency notified the draft decision to the Appellant and
invited it, pursuant to Article 50(1) of the REACH Regulation, to submit comments
on the draft decision by 20 September 2010. At the same time, the Agency
offered the Appellant an opportunity to discuss the scientific background to the
draft decision with the Agency.
On 2 September 2010, the Agency and the Appellant held a teleconference to
discuss the draft decision.
On 17 September 2010, the Appellant submitted comments on the draft decision,
and subsequently on 30 September 2010, submitted a revised IUCLID file to the
Agency with certain additional information.
On 29 October 2010, the Agency, pursuant to Article 51(1) of the REACH
Regulation, notified the draft decision to the Member States Competent
Authorities (hereinafter the ‘MSCAs’ or ‘MSCA’ if singular) and invited them to
By 28 November 2010, the Agency received comments and proposals for
amendments from five MSCAs.
On 1 December 2010, the Agency notified the MSCAs’ comments to the Appellant
in accordance with Article 51(5) of the REACH Regulation, and invited the
Appellant to comment on the proposed amendments. On 21 December 2010, the
Appellant submitted further comments to the Agency.
The Agency considered the MSCAs’ proposals for amendments, and amended the
draft decision. These amendments did not however relate to the Study.
On 13 December 2010, the Agency referred the draft decision (as amended) to
the Member State Committee (hereinafter ‘MSC’), in accordance with Article 51(4)
of the REACH Regulation.
On 1, 2 and 3 February 2011, a meeting of the MSC (MSC-16) took place at which
the Agency’s draft decision was discussed. The Appellant participated at the
meeting as the case owner and was present at the initial discussions of the MSC
on the Agency’s draft decision. Following certain amendments to the draft
decision, which pertained only to the time limit accorded to the Appellant to
submit the results of the Study, the MSC reached a unanimous agreement on the
Agency’s draft decision.
On 22 March 2011, the Agency adopted the Contested Decision and notified it to
the Appellant. Hereinafter, ‘Contested Decision’ refers to that part of the
Contested Decision which is the subject of the appeal, namely section II part 2) of
Decision CCH-D-0000001396-72-03/F of 22 March 2011 adopted by the European
Chemicals Agency, to the extent that the Agency required the Appellant to
conduct a 90-day repeated dose toxicity study in the rabbit by inhalation (Test
Method B.29 of Regulation (EC) No 440/2008 or OECD Test Guideline 413) as
modified by the additional clinical pathology and histopathalogical evaluations
specified in the Contested Decision with reference to OECD Test Guideline 416.
PROCEDURE BEFORE THE BOARD OF APPEAL
On 21 June 2011, the Appellant lodged a notice of appeal at the Registry of the
Board of Appeal seeking the annulment of the Contested Decision to the extent
that the Agency required the Appellant to conduct the Study. The Appellant also
requested the refund of the appeal fee.
The notice of appeal also contained a request to treat certain information as
confidential. More specifically, the Appellant requested that the identity of the
Substance (including the IUPAC name, the chemical and trade names, the EC and
CAS numbers, as well as the REACH registration and dossier submission numbers)
be treated as confidential, as well as information on the uses of the Substance,
the precise tonnage data, the identity of and comment by a MSCA, the names of
three contract research organisations that provided expert statements on the
Appellant’s behalf, and details of certain studies submitted to the Agency.
On 29 July 2011, and further to two requests by the Registry of the Board of
Appeal for clarifications, the Chairman adopted a decision on the Appellant’s
request for confidential treatment. By that decision, the Chairman rejected the
Appellant’s request insofar as it pertained to the identity of the Substance and its
uses, and the names of the contract research organisations (hereinafter ‘CROs’).
The Chairman also rejected the Appellant’s request with respect to information on
the precise tonnage data and information on certain studies that had been
submitted to the Agency. Finally, the Chairman granted the Appellant’s request to
treat as confidential certain personal data.
On 22 September 2011, and further to a request of 29 July 2011 for an extension
of the time limit, which was accepted by the Board of Appeal, the Agency
submitted the defence. The Agency’s defence also contained a request to treat
certain personal data as confidential which was granted by the Chairman.
By letters received on 28 September 2011, DuPont de Nemours (Nederland) B.V.
(hereinafter ‘DuPont’) and the European Coalition to End Animal Experiments
(hereinafter ‘ECEAE’) applied to intervene in the proceedings before the Board of
Appeal. On 14 October 2011, the Agency submitted observations on the
applications to intervene in which it supported the intervention by DuPont but
contested the application lodged by ECEAE. On 20 October 2011, the Appellant
submitted its observations on the applications to intervene in which it expressed
its support for both applications. By separate decisions of 8 November 2011, the
Board of Appeal granted both applications to intervene.
On 23 November 2011, the Agency lodged a request for rectification of the
Decision of the Board of Appeal granting ECEAE’s application to intervene. By
Decision of 15 December 2011, the Board of Appeal rejected the Agency’s request
On 22 December 2011, the Appellant lodged observations on the defence. The
Appellant’s observations contained a request for confidential treatment with
respect to DuPont and ECEAE (hereinafter ‘the interveners’).
On 31 January 2012, and further to correspondence between the Appellant, the
Agency and the Registry aimed at clarifying the parties’ requests for confidential
treatment vis-à-vis the interveners, the non-confidential versions of the notice of
appeal, the defence, the Appellant’s observations on the defence, and the parties’
observations on the applications to intervene were notified to the interveners.
On 9 February 2012, the Agency lodged observations on the Appellant’s
observations on the defence.
On 16 March 2012, the Appellant submitted further observations on the Agency’s
observations of 9 February 2012.
On 21 March 2012 and 22 March 2012, respectively, DuPont and ECEAE lodged
observations on the procedural documents submitted in the case.
On 20 April 2012, the Agency submitted observations on the Appellant’s further
On 25 April 2012 and 11 May 2012, respectively, the Appellant and the Agency
submitted observations on the interveners’ observations.
In response to the Board of Appeal’s request for further information and
documents, on 11 and 12 June 2013 respectively, the Appellant and the Agency
submitted copies of correspondence between them, as well as certain documents
related to the decision-making process, in particular where it concerned the MSC
and the MSCAs.
The Agency’s reply contained a request for confidential treatment with respect to
the Appellant and the interveners. By Decision of 26 June 2012, the Chairman
rejected the Agency’s request for confidential treatment with respect to the
On 18 July 2012 and 2 August 2012, respectively, the Agency and the Appellant
lodged observations on each other’s replies to the request of the Board of Appeal
for further information.
On 22 August 2012, the parties and interveners were notified of the Board of
Appeal’s decision to close the written procedure.
On 17 October 2012, since a member of the Board of Appeal was precluded from
participating in the proceedings, the Chairman designated an alternate member,
Mr Barry Doherty, to act in the present case as the legally qualified member of the
Board of Appeal.
In accordance with Article 13 of Commission Regulation (EC) No 771/2008 of 1
August 2008 laying down the rules of organisation and procedure of the Board of
Appeal of the European Chemicals Agency (OJ L 206, 2.8.2008, p. 5; hereinafter
the ‘Rules of Procedure’), following the request of both parties for a hearing to be
held, the parties were summoned to an oral hearing which was held on 12
December 2012. The interveners were also invited to participate in the hearing.
Oral presentations were made by the parties and both interveners. The members
of the Board of Appeal also posed questions to the parties and interveners.
ARGUMENTS OF THE PARTIES
In the notice of appeal, the Appellant requests the Board of Appeal to annul the
portion of the Contested Decision that requires the Appellant to submit the Study.
The Appellant supports its request with the following pleas of law and fact:
First plea: the Contested Decision breaches Article 41 of the REACH
Regulation, read together with Section 8.6.4 of Annex X, insofar as the
Agency can require additional information as part of a compliance check only
to the extent necessary to answer specific questions concerning toxicity or
risk. In the present case, the scientific questions regarding the Substance
could be answered by a 28-day inhalation study on rabbits and therefore the
Agency should have selected the shorter study.
Second plea: the Contested Decision is inconsistent with Article 13(3) of the
REACH Regulation as the test methods identified by the Agency in the
Contested Decision (EU TM B.29 or OECD TG 413) apply to rodents but not
to rabbits. Accordingly there is no established test method for the Study.
Moreover, the Study is virtually unprecedented in the history of toxicology.
Third plea: the Contested Decision is inconsistent with Article 13(2) of the
REACH Regulation. As there is no standard test protocol for the Study,
Regulation (EC) No 440/2008 should have been amended, as part of which
stakeholders should have been consulted on any amendment.
Fourth plea: the Contested Decision breaches and is inconsistent with Article
25(1) of the REACH Regulation which requires that testing on vertebrate
animals is undertaken only as a last resort. Given the absence of historical
control data, and the rabbit’s susceptibility to stress, the Study is likely to
lead to false positives. Also, the Study is disproportionate as it imposes
substantial testing burdens on the Appellant without a sufficient likelihood
that it will provide scientifically meaningful results. Additionally, testing on
vertebrate animals must be consistent with the relevant requirements for
the protection of laboratory animals as set out in Directive 2010/63/EU
including the use of the minimum number of animals.
Subsequently, in its observations to the Agency’s reply to the request of the Board
of Appeal for further information submitted on 2 August 2012, the Appellant
introduced a fifth plea, on the basis of a document contained in the Agency’s reply
dated 12 June 2012, claiming that the Contested Decision was adopted in breach
of Article 51(6) and (7) of the REACH Regulation insofar as unanimous agreement
was not reached in the MSC on the Agency’s draft decision.
On 22 September 2009, the Agency submitted its defence. The Agency’s
arguments can be summarised as follows:
Section 8.6.4 of Annex X to the REACH Regulation provides the Agency with
wide discretion to decide on what is an appropriate test for a registrant to
perform to allay any concerns identified by the Agency.
Following the evaluation of the Appellant’s registration dossier, the Agency
concluded that there was an inter-species difference in toxicity between rats
and rabbits and therefore the information requirements were to be satisfied
on the most sensitive species, that is, the rabbit. According to the Agency,
the Appellant contests neither the Agency’s finding of the most sensitive
species nor the Agency’s authority to require further studies pursuant to
Section 8.6.4 of Annex X.
A 90-day repeated dose toxicity study is a standard requirement for
substances registered in the 100 tonnes or higher tonnage band. The Study
will provide the Agency with much more reliable information than a 28-day
study as: it carries greater statistical power to detect an effect; it provides
for histopathological examination of a wider range of organs; it allows for an
easier, better and wider investigation of some reproductive effects; and
detects on average an approximately three-fold more potent effect of
chemicals than a 28-day toxicity study. Additionally, given several
structurally-related compounds that are carcinogenic, the interpretation of
hyperplastic and metaplastic lesions in the 90-day study is potentially of
importance as such a response in a 28-day study could be transient.
Further, during the decision-making process, the Appellant never proposed
to carry out a 28-day inhalation study on rabbits.
(iv) The EU TM B.29 and OECD TG 413 cover both rodent and non-rodent
species. More specifically, while OECD TG 413 recommends the use of
rodents and preferably rats, it also accepts the use of other species, if
justified. Such justification exists in the present case given that the rabbit is
more sensitive to the Substance than the rat. As regards EU TM B.29, it is
based on OECD TG 413 and its scope should be interpreted by reference to
the latter. Consequently, established test methods exist for the conduct of a
90-day repeated dose toxicity study in the rabbit, by inhalation.
Furthermore, the Study is technically feasible. The Appellant’s arguments on
consultation with relevant parties should be dismissed.
As the Study is to be conducted in accordance with a standard test method
(EU TM B.29 or OECD TG 413), Article 13(2) of the REACH Regulation does
not apply. Thus, there was no need to review or amend Regulation (EC) No
440/2008, and no need to follow the procedure set out in Article 13(2) of the
(vi) The Appellant has failed to indicate how Article 25(1) of the REACH
Regulation has been breached. The animal welfare perspective was carefully
considered during evaluation of the dossier and the decision-making
procedure. Specifically, the Agency and the MSC considered the need, inter
alia, for a study to provide a better chance to avoid further animal testing.
In addition, the Contested Decision is proportionate.
On 28 September 2011, DuPont submitted its application to intervene in support
of the Appellant and, on 21 March 2012, it submitted further observations on the
appeal. The arguments presented by DuPont can be summarised as follows:
When requiring ‘further studies’ pursuant to Section 8.6.4 of Annex X to the
REACH Regulation, the Agency should take into account Articles 13(1) and
25(1) of the REACH Regulation. The Study was not selected in accordance
with these two provisions, as otherwise the Agency would have required a
28-day rather than a 90-day repeated dose toxicity study by inhalation.
A 28-day study is more appropriate and sufficient, inter alia, as it is
compliant with OECD TG 412, it can provide data relevant for a detailed
assessment of the Substance’s toxicity and it can be used to evaluate
repeated exposure effects on the same or additional organs, tissues and
processes as those normally evaluated in the 90-day study. As the Appellant
had satisfied the REACH requirements, the Agency’s request for additional
information can only be about the shortest possible test.
While historical control data is not required to carry out the Study, it is
necessary to evaluate the results. However, irrespective of whether a 28-day
or a 90-day inhalation study is performed, given the lack of historical control
data, it would be necessary to increase the number of animals used to
ensure the scientific validity of the study.
The evaluation process under the REACH Regulation is similar to a tiered or
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