Australian Competition and Consumer Commission (ACCC)

Public submissions to the review of the National Industrial Chemicals Notification and Assessment Scheme.

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Australian Competition & Consumer Commision logo
GPO Box 3131
Canberra
ACT 2601

23 Marcus Clarke Street
Canberra ACT 2601

tel: (02 6243 1111
fax: (02 6243 1199
www. accc.gov.au
Our ref: e2009/230
Your ref:
Contact officer: Peter Wallner
Contact phone: 02 6243 4972

13 December 2011

NICNAS Review
Department of Health and Ageing
MDP 88
GPO BOX 9848
CANBERRA ACT 2601


Dear Sir or Madam

ACCC Submission to NICNAS Review


I refer to the Government’s media release of 8 September 2011 regarding its call for public submissions to the 2011 Review of the National Industrial Chemicals Notification and Assessment Scheme (NICNAS).


Context and role of the ACCC
The Australian Competition and Consumer Commission (ACCC) is an independent statutory authority responsible for ensuring that individuals and businesses comply with the Commonwealth's competition, fair trading and consumer protection laws under the Competition and Consumer Act 2010 (CCA). The ACCC also plays an important role in consumer product safety with statutory responsibilities under the CCA. The Minister with responsibility for competition policy and consumer affairs is the Parliamentary Secretary to the Treasurer, the Hon David Bradbury MP.

At the Commonwealth level, the ACCC has jurisdiction over consumer goods generally however, the ACCC routinely refers matters relating to goods such as; foods, therapeutic goods, agricultural and veterinary chemicals and poisons to the specialist regulatory agencies. The ACCC liaises with NICNAS in relation to the safety of industrial chemicals used in cosmetics and that may be present in other consumer goods.

As the regulator responsible for consumer product safety under the CCA, the ACCC investigates potentially hazardous consumer goods and can take a number of actions to mitigate risk or prevent the supply of hazardous goods. The Minister for Competition Policy and Consumer Affairs has the power to compel a recall or ban unsafe goods and can mandate standards in relation to consumer products.

It should also be recognised that the ACCC also has responsibility for enforcement of other aspects of the CCA including those relating to misleading and deceptive conduct and anti-competitive behaviour.

In the past, the number of potential chemical hazards requiring investigation and regulatory action by the ACCC was relatively small however, there has been an increasing number of emerging chemical issues requiring assessment by the ACCC. In 2010, the Chemical Assessment and Information Standards Section was established within the Product Safety Branch to deal with chemical issues and a pilot research program was initiated. The following examples illustrate the range of issues that the ACCC responds to in relation to chemicals in consumer products.
  • Bisphenol A in infant feeding vessels
  • Phthalates in mouthable articles and toys for infants
  • Formaldehyde in cosmetics, especially hair straighteners
  • Dimethyl fumarate in leather and textile goods
  • Para-phenylenediamine (PPD) in hair dyes
  • Nanometre scale particles in cosmetics and sunscreens
  • N-nitrosamines in infant dummies and teethers
  • Formamide in EVA foam play mats and toys
  • 3-Iodo-2-propynyl-butylcarbamate (IPBC) in baby wipes
  • Skin lightening creams containing actives such as hydroquinone
  • Methyl methacrylate in rnail varnishes/hardeners
  • Concentrations of hydrogen/carbamide peroxide in over the counter teeth whiteners
  • Intra-dermal tattoo removal cream containing the active triethanolamine
  • Safety of packaging of household chemical such as dishwashing detergent and bleach
The following comments are grouped under relevant headings associated with the terms of reference outlined in the NICNAS review:

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The role and functions of NICNAS
The extent to which they adequately reflect stakeholder expectations and international best practice, having regard to the broader context of chemicals regulation in Australia

The ACCC’s role in consumer product safety often necessitates fast response times in terms of investigation, risk assessment and possible intervention in the marketplace as there is no pre-market approval system for consumer products. A clearinghouse within the Product Safety Branch identifies potential emerging hazards through a range of sources such as; injury data, overseas recalls, complaints, notifications received from suppliers under the new mandatory injury reporting requirements, and alerts by the media. There is often considerable public concern, business uncertainty and significant media interest in the consumer product safety issues that the ACCC deals with. There is a widely held expectation that the ACCC provides immediate and authoritative responses on product safety concerns as, and when, they arise. In many cases safety concerns about chemicals in consumer products may not be justified however, this outcome also requires risk assessment and careful communication. In order to assess and communicate about the potential human health risks (or the lack thereof) it is necessary that the ACCC is rapidly able to access sound and current scientific information on potentially hazardous chemicals that may be released from specific consumer goods.

In matters involving industrial chemicals the ACCC is reliant on the Australian government regulator responsible for industrial chemicals to provide expert scientific advice and risk assessments for industrial chemicals. The ACCC also relies on NICNAS to provide information on the regulatory status of industrial chemicals in Australia and to advise whether particular chemicals or introducers of chemicals are compliant with the Industrial Chemicals Notification and Assessment Act 1989 (ICNA Act).

The ACCC understands the challenges faced by NICNAS in managing around 39,000 existing chemicals on the Australian Inventory of Chemical Substances (AICS) as well as new chemicals that require assessment. The comprehensive process of scientific risk assessment and stakeholder consultation which is undertaken by NICNAS when reviewing a chemical, means that the vast majority of chemicals on AICS have not been assessed.

This situation quite often results in the ACCC seeking urgent advice from NICNAS about the safety of an industrial chemical and to receive only the advice it has not been assessed (by NICNAS). The time frames NICNAS operates to when completing assessments are very different to those confronting the ACCC when responding to potential hazards to consumers. A tension therefore exists in the need for the ACCC to receive fast and current risk advice in circumstances where NICNAS have not completed a full assessment of a chemical. The issue of timeliness is a priority for the ACCC who are responsible for both protecting consumers and for ensuring a vibrant and competitive marketplace exists.

NICNAS are not well adapted to providing rapid interim risk assessment advice that can be used by agencies such as the ACCC to inform decisions that may involve immediate interventions such as product recalls. The ACCC would benefit if NICNAS developed the capacity to provide interim risk assessment advice on industrial chemicals within short timeframes to better inform decisions relating to consumer product safety. While interim advice is by nature incomplete and it may carry extensive qualifications, it is still preferable for the ACCC to be provided with preliminary scientific advice from the relevant Australian government authority than it is to have nothing.

In concert with assessing risk and determining a course of action, the ACCC is commonly asked to respond to public and media enquiries which actually relate to the safety or regulatory status of an industrial chemical or cosmetic ingredient. NICNAS should be in the position where they are able to provide authoritative responses promptly and directly to public and media enquires in relation to the safety and regulatory status of industrial chemicals.

It is also important for the ACCC that NICNAS are also in the position where they can provide essential support for any enforcement action that may be taken in relation to industrial chemicals, where NICNAS is the relevant expert Authority.


NICNAS Governance and Consultation arrangements
Governance and consultation arrangements of NICNAS and the extent to which they support the effective delivery of NICNAS’s functions

Where NICNAS have undertaken Priority Existing Chemical reviews, consultation by NICNAS with external stakeholders has been very comprehensive. The scientific rigour in the work undertaken by NICNAS is well respected both domestically and internationally. NICNAS have provided the ACCC with an adequate opportunity to provide comment on draft reports and recommendations, where appropriate. The review and consultation process undertaken by NICNAS is arguably too elaborate in that it extends the time taken by NICNAS to complete a review.

Cosmetics are a significant class of consumer good for both the ACCC and NICNAS. The Cosmetics Interface Working Group (CIWG) is chaired by NICNAS to resolve cosmetic complaints and matters at the problematic interface between cosmetics and therapeutic goods. This forum serves an important practical function and the model could be extended to deal with matters that relate to industrial chemicals that are regulated in the Poisons Standard 2011.

The volume of allegations relating to breaches of the Poisons Standard is also increasing due to increased media interest and consumer concerns in relation to chemicals. Other drivers for an increased volume of activity in relation to the SUSMP include the NICNAS accelerated assessment of existing chemicals project -IMAP and the mandatory reporting of injuries associated with the use of consumer products which took effect this year under the Australian Consumer Law.

The absence of a centralised mechanism which can provide consistent interpretation, initiate uniform national enforcement and a nationally coordinated communication response creates difficulties in attempting to resolve matters. There is scope for NICNAS to undertake a similar role in coordinating the chemicals and poisons interface with the State and Territory health agencies and other relevant regulators.

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NICNAS operating arrangements
Efficiency and effectiveness of NICNAS’s operating arrangements and business processes, with particular regard to the protection of human and environmental health, the management of risk, and compliance costs for business

In terms of structure, the roles of the Department of Health and Ageing (DoHA), the Office of Chemical Safety and Environment (within DoHA) and NICNAS is not always clear to the ACCC. This lack of clarity results in confusion as to who is responsible for issuing statements and advice in relation to Government policy, interpretation of policy and risk communication. This lead to delays in responding to issues which can be unhelpful when there is a high level of stakeholder concern.

The ACCC is aware that NICNAS is a cost recovery agency and that the costs and time taken to assess a new chemical for introduction is always a contentious issue with industry.

In relation to existing chemicals, the throughput and time taken by NICNAS to complete reviews is considered problematic. The ACCC is aware that NICNAS have strategies to accelerate their assessment of existing chemicals. The inventory multi-tiered assessment and prioritisation (IMAP) framework that has been developed should enable NICNAS to focus resources on a subset of chemicals on the national inventory meeting characteristics supported by stakeholders. The use of information generated overseas, computer modelling and regulatory assessments in other jurisdictions should all assist.

Nonetheless, even with accelerated screening the challenges of responding to emerging issues about industrial chemicals on a day to day basis remain a significant difficulty for the ACCC and other Government agencies.

On some occasions, NICNAS have sought to charge the ACCC for some activities. Charging another Government agency may be appropriate in certain circumstances however the ACCC would expect that the normal statutory responsibilities should be able to be fulfilled by an Authority without levying intra Government fees.

It should be noted that there is a very good working relationship between staff of the ACCC and NICNAS and the two agencies are currently developing a Memorandum of Understanding (MoU).

Risk Management issues
Any implications for and constraints on, transferring risk management functions to alternate agencies

As a general principle, the transfer of any regulatory functions between agencies requires careful consideration, consultation and appropriate transfer of resourcing.

Thank you for providing us with the opportunity to comment on the review. If you have any queries please contact me on 02 6243 4972 or at Peter.Wallner@accc.gov.au.

Yours sincerely


Peter Wallner
Director
Chemical Assessment and Information Standards
Product Safety Branch
Australian Competition and Consumer Commission