Interview: “The verdict is of eminent importance

The trial on the classification of titanium dioxide has ended. What is your assessment of the verdict?

Hans-Helmuth Schmidt: I am, of course, overjoyed! I was certainly hopeful that a victory could be achieved in court with this clear-cut case. However, there were also some who warned me against taking this step of filing a lawsuit. During the trial day in front of the European Court on May 12, 2022 in Luxembourg, which ran from 9 am until late afternoon at 5 pm with a short interruption, more than 30 lawyers and experts of all parties were present and were questioned by the court in an extremely structured procedure.

The Portuguese judge, Maria José Costeira, conducted the proceedings with remarkable professionalism and intelligence. To be able to witness this in the front row with my excellent team of lawyers was a special experience in itself – one that I will certainly never forget.

The entire industry had no understanding for the classification – on whatever basis it was based. What motivated you to take legal action?

Schmidt: For me, it was absolutely necessary and indisputable that action had to be taken against this classification. The ruling is absolutely clear and prevents the disqualification of proven raw materials for the chemicals and paints and coatings industries.

Was it challenging to win over fellow campaigners?

Schmidt: There were definitely concerns within the paint and coatings industry, and initially we were quite alone. However, the excellent factual and legal preparation within our association – also by the former VdL managing director, Dr. Martin Engelmann – then led to a strengthening of the resistance front against the classification.

Can you please briefly classify the impact of the ruling for the industry?

Dr Martin Kanert: First of all, it should be noted: The ruling has annulled the classification of titanium dioxide as probably “carcinogenic by inhalation.” The ruling is of eminent importance not only for the coatings and printing inks industry, but for a large number of sectors. I would therefore like to start by thanking our member companies CWS and DAW, as well as the interveners, including Sto and Tiger Coatings, for having the courage to take legal action after all the previous discussions with the European institutions had failed to produce a satisfactory result.

Incidentally, this was the view of the titanium dioxide manufacturers, who had also filed a lawsuit and were supported in this by the European coatings association CEPE, the British coatings association BCF and the US coatings association ACA.

What exactly did the court rule on?

Kanert: Firstly, the European court found that there had been serious errors in the assessment of the study on which the classification was based, both by the Risk Assessment Committee (RAC), which was responsible for the scientific assessment, and by the European Commission, which had apparently adopted the RAC’s assessment without checking it. The court thus calls for the utmost care in assessing the facts that are to justify a classification, and also instructs the European Commission to do justice to its mandate and not simply to adopt the recommendations of the RAC, but to examine them conscientiously.

Dr. Heike Liewald: Secondly, the court states that particle effects are not intrinsic properties of a substance and may not be used for substance classification under the CLP Regulation. We as VdMi have been advocating this position for years and are therefore very pleased that it has now finally been confirmed: Particle effects do not belong in the CLP Regulation. With these very careful and scientific justifications, the court has placed its judgment on two solid pillars.

With this ruling, is titanium dioxide out of the “firing line” for further classification projects?

Kanert: I assume that the European Commission will analyse the ruling in detail and come to the conclusion that the ruling is well founded.

If the court had continued to see a danger of the substance, what potential impact could this have had on other raw material groups?

Liewald: The court found that the Commission and the RAC made serious errors in their assessment. Since these errors were decisive for the classification, it was annulled. We think that the ruling is a clear signal that fundamentally a different way of dealing with particulate dusts has to be found and that this can only be achieved in a meaningful way if industry and authorities work on it as equals, scientifically and constructively.

Even if the verdict is positive for the industry, there are after-effects. Labels have been created, products with the classification are already with customers or still on the market, etc. Has this already been addressed?

Kanert: First, the ruling must become legally binding. That will be the case if neither the Commission nor any interveners on the Commission side decide to appeal. The Commission has until around mid-February to do this.

In fact, with the entry into force of the regulation that added the classification of titanium dioxide to the CLP regulation, the labels for containers for products containing titanium dioxide had to be reprinted and provided with the EUH phrases 211 or 212. The cost of this “relabeling” runs into millions. We are currently clarifying the question of whether and, if so, how the damage incurred by our member companies can be compensated.

Incidentally, the ruling also has implications for a number of regulations in other areas of law that use the classifications of substances for regulatory purposes, such as environmental labels or waste legislation. Here, too, adjustments will have to be made.

What does a solution look like and can it be implemented quickly?

Liewald: First, we have to wait and see whether the ruling becomes legally binding in mid-February. Until then, the current regulations continue to apply, and the following applies: pigment and powder mixtures do not fall under the classification criteria if a non-classified titanium dioxide powder is used. We as VdMi and VdL have clarified this in extensive measurement studies. How to deal with the hazard statements for solid and liquid mixtures still on the labels still needs to be clarified.

But also on the customer side, there is certainly a lot of irritation due to the classification and thus a need for clarification. What steps are planned by the association to support its members?       

Kanert: We have informed our members in detail throughout the entire process. We maintain close relations with the customer associations and inform them as well. In order to reach a broad range of customers, we produce customer information leaflets that are published on the Internet and can be used by our member companies to inform their customers. I would like to draw particular attention to our “Forum Titanium Dioxide” platform, operated jointly with the VdMi, where we address many questions and provide competent answers.

Is it possible to claim financial compensation from the European Commission?

Schmidt: Our company, CWS, alone has incurred about half a million EUR in costs. If you take the entire group of plaintiff companies involved, this will certainly amount to a large sum in the millions. I assume that, as usual, the losing party will then have to pay the entire party – in the end, unfortunately, as always, the EU taxpayer and citizen.

However, I do not consider the proceedings to be over by a long shot. The incorrect labeling on packaging in the paint and coatings industry must now finally be removed. This affects millions of packages throughout the industry.