Chemical and Allied Industries Association

CHEMICAL AND ALLIED INDUSTRIES’ ASSOCIATION

15th Floor 25 Owl Street

(cor Empire Road)

AucklandPark 2092

PO Box 91415

Auckland Park 2006

Republic of South Africa

CONSUMER PROTECTION BILL [B19-2008]

SUBMISSION BY CHEMICAL AND ALLIED INDUSTRIES ASSOCIATION (CAIA)

TO PORTFOLIO COMMITTEE ON TRADE AND INDUSTRY

SEPTEMBER 2008

INTRODUCTION

The Chemical and Allied Industries Association represents the interests of the chemical industry and promotes the safe management of chemicals throughout their lifecycle.

CAIA participated in the preparation of the BUSA comments on the Bill, published for public comment. CAIA was particularly concerned with the requirements relating to the management of hazardous goods, which is understood to include chemicals as the inclusion in the Bill constitutes duplication with other chemicals management legislation.

During the Nedlac discussions, the dti reiterated that it was not their intention to duplicate existing legislation on any aspect covered by the Bill. CAIA was therefore disappointed to note that despite these assurances duplicate provisions in respect of chemicals remain in the Bill.

This submission focuses on those aspects of the Bill that deal with hazardous goods.

In making this submission CAIA wishes to make clear that the need for legislation to manage chemical safety is supported by the chemical industry. The South African chemical industry subscribes to the Global Product Strategy and the Responsible Care initiative of the global chemical industry and as such promotes the safe use of chemicals throughout their lifecycle on an ongoing basis. The Responsible Care Global Charter is attached for information.

GENERAL

CAIA recognises the concerns of the Portfolio Committee that even provisions for labelling do not necessarily assist illiterate consumers. This challenge is recognised by the chemical industry globally and in general efforts are made to limit the amount of hazardous substances allowed in consumer products to protect consumers.

The duplication which remains in the Bill is largely as a result of a lack of consistency in dealing with other regulators in various sections of the Act. In the case of chemicals it is not clear how the issue of duplicate requirements will be dealt with due to the lack of clarity on the recognition of the various regulators.

CAIA recognizes that existing legislation on chemicals does not necessarily deal adequately with redress for consumers. There is therefore justification for dealing with this in this Bill. However the technical aspects of chemicals management is better dealt with through existing legislation.

DETAILED COMMENTS

The challenge with the legislation referred to above is that the evaluation of concurrent jurisdiction and the detailed provisions relating to each hazardous chemical substance is an extremely onerous task not only for the State but for the company as well. Management of hazardous chemical substances relies on a hierarchical approach which includes the following elements:

• Classification of hazard
• Development of safety data sheet including instructions for use and emergency response, according to prescribed provisions
• Development of labels and transport documents
• Training in the use of the documentation
• Limitation of the use of certain chemicals either individually or in specific products

These elements are included in a variety of other laws.

Labelling of chemicals or goods containing hazardous substances is currently covered by the following national legislation.

• Hazardous Substances Act
• Fertilizers, Farm Feeds, Agricultural and Stock Remedies Act
• Medicines and Related Substances Control Act
• Occupational Health and Safety Act
• Mines Health and Safety Act
• Foodstuffs, Cosmetics and Disinfectants Act
• National Road Traffic Act
• Standards Act

In the case of pesticides and medicines, this hierarchical procedure is followed and the labels are individually approved for each product as are the instructions for use.

In respect of other chemicals the same approach is adopted except that the individual labels and safety data sheets may not be individually approved.

Limitation of the use of certain chemicals in foodstuffs or other consumer goods is also managed through other legislation.

Evaluation of these hazard management instruments as contemplated in terms of section 2(9) as set out below is extremely onerous and CAIA believes that existing legislation in this regard should be allowed to prevail.

“2. (9) If there is an inconsistency between any provision of this Act and a provision of any Act not contemplated in subsection (8)-

(a)the provisions of both Acts apply concurrently, to the extent that it is possible to apply and comply with one of the inconsistent provisions without contravening the second; and

(b)to the extent that paragraph (a) cannot apply, the provision that extends the greater protection to a consumer prevails over the alternative provision.”

This could be achieved by wording along the following lines:

“ (c) Provided that in the case of chemical products only the provisions of this Act relating to consumer redress will be applicable.”

The challenge presented by the management of hazardous chemicals could also be addressed in terms of section 5 if clarity was provided in terms of the meaning of “regulatory authority”

Section 5

If the legislation above is considered in conjunction with the definition of “regulatory authority” it is not clear that subsection (3) in fact allows for the Departments of Health, Labour, Transport, Minerals and Energy to be recognized as a regulator authority which may apply to the Minister for exemption for certain provisions of the Act. Even if these departments were to be included it is clear that the administrative burden could be excessive.

5.(3) A regulatory authority may apply to the Minister for an industry-wide exemption from one or more provisions of this Act on the grounds that those provisions overlap or duplicate a regulatory scheme administered by that regulatory authority in terms of-

(a) any other national legislation; or

(b) any treaty, international law, convention or protocol.

Section 22: Right to information in plain and understandable language

The wording of Section 22 is not considered precise enough to achieve the avoidance of duplication as is the stated intention in that notwithstanding the fact that the information contained in a notice, document or visual representation may be prescribed in terms of any other law it remains subject to control under this Act.

Section 22 (1)(a) requires that the any documentation required to inform the consumer must be in the “prescribed” form. While it appears as if the intention is to allow the provisions of other laws to be recognised, the term “prescribed” is defined in this Bill as being an action by ”the member of the Cabinet responsible for consumer protection matters,” which implies a single person. The provisions of this Bill already recognise that there is a need to manage concurrent jurisdiction to the reference to a single member of Cabinet may be inadvertent. Whichever way this issue is viewed, it is clear that prescription by a single Minister is contemplated which means that any other prescription is not accepted, which means in turn that unless the prescription is in terms of this Act, subsection (b) applies. This in turn presents its own challenges.

Consider for example the requirements for visual representation of hazards in terms of national legislation.

These requirements are in line with international requirements to facilitate trade in chemicals. Any attempt to revise them in terms of this legislation could have serious implications for trade in a sector where one of the strategic imperatives is to reduce the trade deficit.

In addition to the requirements in respect of the visual elements, both the format and topics to be covered in documentation on chemicals and in some cases even the actual wording is prescribed by legislation which in turn is based on international requirements.

It is therefore proposed that Section 22(1)(a) be amended as follows,

In the prescribed form prescribed in terms of this or any other law ,if any, for that notice document or visual representation,

The other problem with the sections in this part is that in terms of section 22 the term “any other law” is used whereas in this part the term “ any other public regulation” is used. There needs to be a consistent use of such terms throughout the Bill.

Part H: Right to fair value, good quality and safety

Section 53(1)(c): A chemical hazard cannot be defined in terms of a “design characteristic” alone.

It is therefore proposed that section 53 (1)(c ) be revised as follows:

53. (1)In this Part, when used with respect to any goods, component of any goods, or services-

(c)‘‘hazard’’ means a design characteristic that—

(i) has been identified as, or declared to be, a hazard by or in terms of any applicable public regulationother law; or

(ii) presents a significant risk of personal injury to any person, or damage to property, when the goods are utilised; and

It is proposed that the intention to exclude duplication of requirements for chemicals be made explicit by inserting wording along the following lines:

“53(2): The provisions of this part do not apply to chemical goods the sale of which is regulated by any other law”;

Section 58(2): the inclusion of “any other prescribed standards” appears to introduce an additional requirement, which may contradict the requirements of section 22 on the one hand and which appears on the other hand to provide for the Minister to place additional requirements. The use of the term “standards” in this context is also not clear as in terms of section 55(d) the term “standard” is qualified by reference to the Standards Act. Many provisions for hazardous chemical substances are covered in national standards which are incorporated into legislation by Notice.

Section 58(3): While there appears to be an attempt to avoid duplication of legislation, the wording could lead to a situation where a supplier would be required to demonstrate substantially similar characteristics in terms of this legislation. This adds unnecessary cost to hazardous chemical suppliers who are already subject to significant requirements in this regard in terms of other legislation.

Section 58(4): Leads inescapably to duplication as enforcement of the requirement can occur through this and other legislation.

Again it is proposed to make the intention in respect of chemicals explicit, by inserting wording along the following lines:

Section 58(5): The provisions of this Part do not apply to goods the sale of which is regulated by any other law";

Section 59: Recovery and disposal of designated products or components

This section duplicates the requirements included in the National Waste Management Bill, which is currently being considered by Parliament. In terms of the Waste Management Bill the detailed requirements for management of specific waste streams have to be developed in consultation with the affected industry.

The Waste Bill covers all aspects of waste management and cannot be made subordinate to the Consumer Protection Bill, in respect of one aspect of waste management.

It is proposed that this section be deleted.

Section 60: Safety, monitoring and recall

It is not clear if this section applies to chemicals, which are in some cases by their very nature hazardous. It would therefore not be appropriate for chemicals to be returned as a result of their intrinsic nature.

It is therefore proposed that section 60(1)(a) be amended by the deletion of the term “hazard throughout” and replacement with “safety risk”.

In cases where hazardous chemicals may be a component of other articles like toys for example, control is exercised through the Hazardous Substances Act administered by the Department of Health. The recent draft regulation in respect of lead in paint is an example of such legislation.

Part B: Industry Codes of Conduct

Section 82

CAIA manages the Responsible Care initiative in South Africa and as part of this initiative has developed a range of Management Practice Standards or Codes to support implementation of the initiative in South Africa. A specific code on Product Stewardship covers the responsibility of the chemical supplier to provide information on the hazardous nature of the chemical and how to manage it to all customers.

CAIA is currently working on specific guidance documents for the safe handling of a range of hazardous chemicals used in South Africa.

In so far as problem chemicals may be identified for special management, CAIA would be willing to work with Government on the development of specific industry codes which would be recognized in terms of this legislation.

CONCLUSIONS

CAIA is concerned that notwithstanding repeated assurances to the contrary, this Bill as currently drafted constitutes significant duplication with existing legislation regulating chemicals and their use in products.

The committee will take the necessary steps to address these concerns and is willing to work with the committee in finding a solution to the challenges presented in this submission.

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