Footwear legislation on restricted substances

Revealing the importance of both understanding and complying with the growing scope of product legislation.

In recent years, there have been growing concerns over the impact that consumerism is having upon our planet. This has resulted in an increasing demand for products to be manufactured in a sustainable way and not to pose harm to our environment when they are disposed of at the end of their useful lives.

One important consideration to this is the presence of persistent or potentially harmful chemicals used in the production of consumer goods. Most countries have legal stipulations in place which impose restrictions upon the placing of such chemicals onto the market, whether this is as the pure chemical or contained within consumer goods. It is expected that such restrictions will become more stringent in the near future, so it is more important than ever that brand owners understand their legal obligations. This article intends to provide an introduction to the concept of restricted substances legislation, and to discuss the steps companies can take to devise an effective compliance strategy.

Restricted substances legislation

‘Restricted substances legislation’ is a general term used to describe laws which regulate the placing of potentially hazardous chemicals and substances onto the market. They apply to chemicals supplied in their pure form, to substances present in mixtures or preparations, (such as adhesives or paints), and to articles. This includes the presence of chemicals in consumer goods such as clothing, footwear and furnishings.

The aim of implementing legislative requirements is to protect human health and the environment from the effects of harmful chemicals. This includes substances which can have long-term health implications, such as carcinogens, mutagenic substances and substances toxic to reproduction, as well as those that can cause more immediate effects including skin irritation or allergic reactions. Restrictions are also imposed on chemicals which have an environmental impact, such as those toxic to aquatic ecosystems, persistent substances which do not degrade easily at end of life, and chemicals which are bioaccumulative through the food chain. Examples of restricted substances legislation and the regions that they apply are provided in table 1.

Table 1: Examples of restricted substances legislation
Legislation	Applicable region
REACH	EU, EEA and Northern Ireland
UK REACH	UK (excluding Northern Ireland)
Persistent Organic Pollutants	EU, EEA and UK
EU Toy Safety Directive	EU
UK Toy Safety Regulations	UK
German Product Safety Act	Germany
CPSIA 2008 (US)	USA
California Proposition 65	US State of California
Children’s Safe Products – Washington State	US State of Washington
Japan Law 112	Japan
China GB Standards	China

The specifics of legislative requirements can vary considerably between different countries and regions. This can include differences in which substances are7 restricted, the amount of a specific substance that is permitted to be present in a product, and the types of products in which those particular substances are restricted.

Restrictions can also be dependent upon the end use of the finished product. For example, several substances listed within the European Union’s REACH legislation are only restricted in products which come into prolonged contact with the skin. In contrast, others are banned from being present in all materials, regardless of skin contact.

Many regulations also include more stringent requirements for products which are intended for children. This includes substances such as lead, a toxic metal which can be fatal when ingested, and phthalates, which affect the hormone system and can therefore cause developmental problems. Brand owners must ensure that the products they place on the market are compliant with all relevant pieces of legislation. Therefore, it is vital that companies have a clear understanding of the legal requirements of the countries into which they sell.

The risks of non-compliance

Failure to comply with restricted substances legislation can have severe implications. Products which are non-compliant must be withdrawn from the market, and any existing stock cannot be sold. Within the EU, there is a ‘rapid alert’ system in place which provides weekly reports on products that have been found to pose a serious risk. This system – known as ‘RAPEX’ – promotes the sharing of information to facilitate the effective removal of dangerous products from the market. Depending upon the severity of the risk posed by a non-compliant product, the brand owner may need to implement product recalls, as well as offer refunds or compensation to affected consumers.

Brand owners can also face significant financial penalties if they are found to have placed non-compliant products on the market. In the case of California Proposition 65, the fine for selling a product without a warning label where one is needed can be up to USD 2,500 per violation per day, so this can very quickly add up to large sums that are likely to have a devasting financial impact. For failures to comply with REACH in the EU, the penalties can include unlimited fines and, in severe cases, imprisonment.

Beyond these direct financial implications, failure to comply with legal requirements can have a severe impact upon a brand’s reputation. This can be particularly damaging where the non-compliance concerns an emotive response from the public, for example, in the case of products intended for children or vulnerable people. In the modern age of social media, information has never been so freely available. Therefore, it can be very difficult for a brand to recover from negative public perception if it becomes widely known that the company has been selling products that pose a health risk.

There are several potential routes by which non-compliant products may be identified. These include investigations by official organisations and alerts from concerned parties or members of the public. Within the UK, Trading Standards is the primary organisation responsible for regulating consumer protection. It will act upon reports from the general public about potentially unsafe products and conduct an inspection to determine whether further action is required. This investigation may include the spot-testing of products available on the market.

Equivalent organisations existing in other countries operate in a similar manner. As well as these official channels, testing of products available on the market may also be conducted by non-governmental organisations, consumer advocacy groups, or even members of the public. This may be undertaken due to genuine concerns for public safety or the environment, but it can also be motivated by financial incentives. For example, California Proposition 65 allows the person or entity filing a lawsuit against a company for non-compliance to claim a portion of the imposed fine.

How to ensure compliance

Managing compliance with restricted substances legislation can seem daunting, but there are a number of steps brand owners can take to facilitate information sharing through their supply chain. The first stage in developing an effective compliance strategy is to have a good understanding of the specific requirements that apply in the countries or regions in which you operate. This can be achieved through conducting your own research into applicable legislation, seeking advice from contacts who operate in those regions, or consulting industry experts such as SATRA.

SATRA has produced resources to give further details of specific product regulations, including the article ‘An introduction to California Proposition 65’ published in the May 2022 issue of SATRA Bulletin, and a number of webinars on the subjects of REACH, UK REACH and other European regulations available at www.satra.com/resources

Once you have developed a clear understanding of the relevant legislation, the next stage is to consider how this relates to specific products. This will require an in-depth knowledge of your supply chain, in order to identify the raw materials used and the particular region from where they are sourced.

The construction and end use of the product should also be considered, as this can affect the applicable legislation. Communication throughout the supply chain is key to devising an efficient and effective compliance strategy. Suppliers of materials or components may be able to provide you with declarations of conformity or test reports which can demonstrate the necessary compliance with particular regulations.

A useful tool that can aid in such sharing of information is having a brand Restricted Substances List (RSL). This is a document that summarises the requirements of your brand, and you can tailor this to include only the legislation that is relevant to the markets in which you operate. Any such document should be regularly reviewed to ensure that it stays up-to-date and, as legislation is continually evolving, we would recommend issuing an updated RSL at least annually. At SATRA, we produce our own RSL documents summarising UK and EU legislation, which we review and update twice a year. Our generic Consumer Products RSL is freely available on our website, and we also produce documents specific to the footwear and furniture industries, which are available exclusively to our members.

SATRA’s RSL documents summarise United Kingdom and European Union legislation, and are reviewed and updated twice a year

While declarations from suppliers are very helpful as a means of demonstrating compliance, they should not be solely relied upon, and due diligence testing should be regularly carried out to support such declarations. This is because the ultimate responsibility for compliance lies with the brand owner placing the product on the market, and declarations from suppliers will not be sufficient to absolve brand owners of their legal responsibilities should a case of non-compliance occur.

In order to be as efficient as possible, due diligence testing should focus on those products or materials that are deemed to carry a higher degree of risk. This could be influenced by a number of factors, including i) the likelihood of certain hazardous substances being present in the materials used, ii) the intended use of the product, iii) the vulnerability of the intended user of the product (for example, children or the elderly), iv) the relationship and history with the supplier, v) how widely raw materials are used through your product range, and vi) the popularity of the product with your consumers. By considering all these points, you can undertake a risk assessment of your product range and identify the products and materials that should be a priority for due diligence testing.

In conclusion

To summarise, restricted substances legislation is a complex topic, and it can be challenging for brand owners to ensure that they comply. With the growing concerns over the impact our modern consumer lifestyle is having upon our planet, we can expect to see legislation becoming more stringent over the coming years with, as a result, restrictions being imposed on additional substances and existing requirements becoming more severe.

In this changing landscape, it is vital that operators at all stages of the supply chain understand their legal obligations and keep up-to-date with any changes implemented in the regions into which they sell. Failure to comply with regulations can have very serious consequences, so traceability of materials through the supply chain and regular due diligence testing are essential to ensure ongoing compliance.

How can we help?

SATRA can help brand owners to keep informed with any key changes to chemical legislation through our Restricted Substances Lists, published twice annually. Please contact our dedicated team of experts (email chemistry@satra.com), who can assist with enquiries about SATRA RSLs, understanding legislation or due diligence testing.

Publishing Data

This article was originally published on page 10 of the October 2023 issue of SATRA Bulletin.