Paint companies adapt to tightening environmental legislation

10 July 2023

Sara Lewis, Heba Hashem and Keith Nuthall report on the impact of global regulations on the coatings industry in the US, Europe and the UK

As a chemical-based sector, the paint and coatings industry is particularly sensitive to changes to environmental regulation, and while governments have a duty to protect the planet and its human health, they need to avoid damaging manufacturers in the process. 

The UK stalls on UK REACH

Unfortunately for the British paint and coatings industry, the UK government has been failing to efficiently replace the European Union’s (EU) REACH chemical control system with a UK REACH, following Britain’s December 2020 exit from the EU. 

That is the verdict of the British Coatings Federation (BCF), which warned in May (2023) that the cost to industry of a new planned British chemical registration regime could be £3bn, duplicating much work already undertaken under the EU REACH, which in any case continues in force in Northern Ireland under its special Brexit protocol. 

This follows the release of a new statutory instrument by the UK government that delays for another three years the submission of chemical safety data to the UK Health and Safety Executive (HSE), to October 2026, October 2028 and October 2030, depending on the tonnage and toxicity of the chemical. [1]  

Speaking at the BCF’s annual conference on May 25, BCF Chief Executive Tom Bowtell said: “After years of back and forth, it is becoming increasingly clear that the Government’s plan for establishing a UK REACH regime is not going to be successful as industry requires. We welcome the current pause applied to the REACH registration deadlines but work on an Alternative Registration Model also seems not to be addressing many of the concerns that led to that pause in the first place.” He said that the UK government, which will face a general election before the fall of a first UK REACH deadline, “could cost UK industry billions of pounds but we are not currently seeing the application and creativity required to find a solution that works. The ongoing uncertainty is bad for business planning and investment and yet we are no nearer a position of clarity.” 

The EU: “Adding to the regulatory burden”

While the UK plays Brexit catch up, the EU is moving greenwards under the current European Commission’s European Green Deal strategy, and this means significant numbers of new green regulations. The EU’s paint and coatings sector is being “bombarded” with different eco regulations as the bloc attempts to live up to its green deal ambitions and the linked October 2020 Chemicals Strategy for Sustainability [2], according to Didier Leroy, Technical and Regulatory Affairs Director, at the European Council of the Paint, Printing Ink and Artists’ Colours Industry (CEPE). 

“Existing legislation is already giving us headaches,” Leroy told PPCJ, with new and upcoming laws that aim to green up Europe, “further adding to the regulatory burden”. 


EU regulatory round-up: June 2023

A December 2022 proposal [3] to revise the classification, labelling and packaging (CLP) of substances and mixtures regulation, which the European Commission says will “foster the transition” to sustainable chemicals, is currently before the European Parliament and the EU Council of Ministers. A closely linked proposal under the 2020 Strategy to revise the EU REACH regulation, notably to weed out the use of more hazardous substances, is expected in the final quarter of this year. 

Particularly worrying for the paints and coatings industry is the shift from a risk to a hazard-based approach under the Strategy, which does not take real life exposure into account and therefore, the true danger or safety level of a chemical when in use. “Even if a substance is safe for use, Europe is saying ‘we don’t want it’,” Leroy told PPCJ, explaining that this was because “Europe is moving away from science-based regulation to politics.” 

Trevor Fielding, CEPE Senior Regulatory Affairs Manager added that this switch to a hazard-based approach is “something we always feared” and “means a very different approach to managing and controlling chemicals in our society.”

Leroy continued that for the Commission, the EU believes: “We can only have a sustainable Europe if we don’t have hazardous chemicals.” He noted that before, substances had to present specific serious hazards or risks to be to be tackled under REACH, “now we see ‘P’ is sufficient to act!” 

For the paint and coatings sector, “It’s becoming very difficult. Our members need reactive chemicals because coatings are very technical and need to cure to form a protective film. One you buy in a DIY store is not the same used on a car.” Leroy acknowledged that the EU paint sector uses “a lot of chemicals” but insisted that the risk was managed. 

The CEPE duo are particularly critical of a December 19 delegated CLP reform regulation [4] that took effect in April, adding category 1 and 2 endocrine disruptors (EDs), persistent, mobile and toxic (PMT), very persistent and very mobile (vPvM), persistent bioaccumulative and toxic (PBT) and very persistent and very bioaccumulative (vPvB) to the EU’s list of hazard classes. The CLP classifies substances purely on hazard and Leroy explained that “there’s a lot of consequences for a substance being classified,” as companies using a substance must find substitutes. 

The additional classes mean the EU now diverges from international standards under the United Nations’ Globally Harmonised System of Classification and Labelling of Chemicals (GHS), which CLP has mirrored since 2008. The bloc changed its classification without consulting other key GHS users, notably Japan and the United States. “It’s a big step to be diverging from GHS,” Fielding stressed: “We question why they’re doing it.” He forecast that the change was “going to cause a lot of discussion internationally.”

Adding to the difficulties is the short timescale to phase out hazardous substances. “If we can substitute most hazardous chemicals, we will do it. We are part of the solution. However, innovation takes time,” said Leroy, noting that “the testing needed by our customers can take 10 to 15 years.” 

In an October 2022 position paper [5], CEPE floated the Early Analysis of Alternatives (eAOA) approach to phasing out hazardous chemicals by checking what technically equivalent alternatives are available. Sometimes substances will be available in a few years, but Leroy warned, “in most cases that is not the case, and we need time to do it.” 

Alternatives can also have drawbacks, for example they might not be as durable, so as sustainable, or they might only be produced in China bringing potential security of supply issues. Fielding also flagged up a proposed ban on per-and polyfluoroalkyl substances (PFAS), on which the European Chemicals Agency (ECHA) is consulting until September 25 (6) and dismissed claims that there were alternatives: “That’s marketing talk, not tech talk,” he told us. “Some paints and coatings and printing inks would be affected by the PFAS ban.” 


View from the US: Don’t look now, but PFAS is EVERYWHERE!

Other environmental requirements flow from the EU’s ecodesign regulation and standards. And in future, paint pots will have to comply with reuse and recycling requirements in a proposed new packaging and packaging waste regulation [7]. Furthermore, greenwashing will be outlawed and green claims will need to be proven under other pending or planned legislation. The Commission will moreover produce a framework for safe and sustainable-by-design (SSBD) chemicals under its 2020 Strategy: “One concern is double regulation or even triple regulation,” Fielding said, adding: “We take the view REACH should cover everything”. 

EPR impacts the US

In the US, one of the most important laws impacting the coatings industry is the Extended Producer Responsibility (EPR) [8], a policy approach that assigns manufacturers financial and operational responsibility for the end-of-life of products. Although just four USA states – Maine, Oregon, Colorado and California – have adopted EPR legislation for packaging (in 2021 and 2022), the topic is getting a lot of attention across the country in state legislatures. 

“These laws will require producers to manage the end-of-life of products introduced into commerce, including the products’ packaging as means of reducing the packaging waste stream and shifting the cost burden from government to industry,” a spokesperson for the American Coatings Association (ACA) told PPCJ. 

“ACA and its industry are leaders in the EPR space with its vanguard PaintCare programme — a product stewardship model that ensures environmentally responsible end-of-life management for leftover paint. In addition to diverting leftover paint from landfills to the extent possible, PaintCare also manages the end-of-life of paint containers collected in the programme,” said the spokesperson [9]. 

The association and industry are working to broaden adoption of this “landmark environmental stewardship programme beyond the 11 jurisdictions where the programme has been adopted,” (California, Colorado, Connecticut, Maine, Minnesota, New York, Oregon, Rhode Island, Vermont, Washington state, and the District of Columbia), said the spokesperson. 

Because PaintCare manages the containers collected in the programme, the ACA has been able to convince decision-makers that these containers should be exempt from USA packaging EPR requirements, but 40 US states remain outside and so their paint and coatings companies may be affected by EPR.  

In the meantime, even states within PaintCare are looking closely at EPR: “Maine, Oregon, Colorado and California are still working toward implementation of these EPR programmes, including defining the scope of the statutory exemptions. This work is just beginning,” said the ACA spokesperson. “To date, no other state has adopted packaging EPR, although many bills on this topic have been introduced across the country.” 

ACA said it was working to ensure that divergent EPR proposals arising across the states recognise the work conducted by organisations like PaintCare and do not impose undue regulatory or financial burdens on industry. In addition, the ACA has developed a Plastics Work Group that is analysing the regulatory impacts and aiding the development of comments during the EPR rulemakings. 

Apart from the EPR, the paint industry will also be impacted by the US Environmental Protection Agency (EPA) recently proposing amendments to the USA New Source Performance Standards (NSPS) and the National Emissions Standards for Hazardous Air Pollutants (NESHAP). These apply to the synthetic organic chemical manufacturing industry and the polymers and resins industry (groups I and II) – all key elements of the paint and coating sector supply chain (10).  

The amendments, proposed in April 2023, address NSPS for equipment leaks of volatile organic compounds, emissions for ethylene oxide and chloroprene, and the removal of exemptions from the standards for startup, shutdown, and malfunction periods. The EPA is accepting comments on this proposal through June 26, 2023. 

“Monitoring the implementation of these regulatory programs is vital and ACA is constantly working to ensure that our members are aware of these developments and, to the extent possible, to share compliance strategies,” said the ACA spokesperson. 


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