Legally and Politically important
Cleared from scrutiny
Proposal for a Council Directive amending, for the purpose of adapting to technical progress, Annex II to Directive 2009/48/EC of the European Parliament and of the Council on the safety of toys, as regards lead.
Article 46(1)(b) of Directive 2009/48/EC on the safety of toys; QMV
Business, Energy and Industrial Strategy
(38049), 12153/16, COM(16) 560
8.1The 2009 Toy Safety Directive sets limits on the content of nineteen heavy elements in toys, to protect the health of the children who play with them. These value limits are contained in an annex to the Directive, which can be amended by the European Commission in light of new scientific or technical developments. In early 2015, on the recommendation of the European Food Safety Authority, the European Commission used this power of amendment to propose a further reduction in the permitted lead content of toys.
8.2In her assessment of the proposal, the Minister for Small Business and Consumers (Margot James) states that the Government considers the Commission’s estimated health benefits of reducing toys’ lead content further to be “very optimistic”, because the proportion of children’s exposure to lead from toys is very small. Overall, the Commission estimates that the Directive will lead to 662 job losses across the EU. However, as 85 to 90 per cent of all toys sold in the EU are manufactured in China, the Minister notes that “it is primarily manufacturers located there that are affected”.
8.3The Minister also explains that adoption of the Directive would not require a change in UK legislation, as the Toy (Safety) Regulations 2011—which transpose the Toy Safety Directive into UK law—refer to the limit values laid down by the Directive by ambulatory reference.
8.4The proposal was originally put to the vote in a committee of technical experts representing the Member States in January 2015. However, it did not have the support of a qualified majority. The Commission subsequently re-submitted it to the Council as a formal proposal for a Directive in September 2016. The Environment Council endorsed the proposal at its meeting on 17 October, with the UK Government abstaining as the document was still under scrutiny. The Directive now awaits a final vote in the European Parliament before it can enter into force (see “Background” for more information on the procedural history of the proposal).
8.5We take note of the Minister’s (Margot James) assessment that the health benefits of reducing the lead content of toys further are likely to be smaller than estimated by the Commission. However, we also note that the vast majority of toys sold in the EU are manufactured in China. As such, the impact of the proposal on UK businesses is likely to be very small. In addition, as the Council has already voted on the Directive—with the UK Government abstaining—we are content to clear it from scrutiny.
8.6However, we do wish to raise a final issue with respect to the UK’s decision to leave the EU. In her Memorandum, the Minister notes that the Toy (Safety) Regulations 2011 refer to the value limits of individual chemicals by ambulatory reference to the Directive. In other words, the Regulations do not explicitly incorporate the specific limits for chemicals such as lead, cadmium and mercury into UK law. The transposition measure is therefore directly dependent on the Directive and cannot operate independently.
8.7This raises an obvious problem in the context of Brexit. At the moment the UK ceases to be an EU Member State, it will no longer be bound by the provisions of the Directive. However, clearly the Toy Safety Regulations would be deprived of their effect unless either the ambulatory reference to the Directive was maintained or the limit values were explicitly incorporated into UK law. We therefore ask the Minister to clarify whether the Great Repeal Bill will aim to incorporate those elements of the Directive which are currently referred to by ambulatory reference directly into UK law.
Proposal for a Council Directive amending, for the purpose of adapting to technical progress, Annex II to Directive 2009/48/EC of the European Parliament and of the Council on the safety of toys, as regards lead: (38049), 12153/16, COM(16) 560.
8.8In 2009, the EU adopted the Toy Safety Directive (TSD) which sets strict safety standards for toys, in particular as regards use of their chemical composition and their flammability. Unless products meet the requirements of the Directive, they cannot be marketed in the EU. In addition to restricting the use of known or suspected carcinogens, the Directive expressly limits toys’ content of nineteen heavy elements such as lead, mercury and cadmium.
8.9The content limit for each of these elements is laid down in Annex II to the Directive, which can be amended by the Commission to update it in view of technical and scientific developments. Any such amendments must be approved via the so-called regulatory procedure with scrutiny, which is laid down in a 1999 piece of legislation on the implementing powers of the Commission. Under this procedure, the Commission’s proposed amendments must at first instance be put to a committee of technical experts representing the Member States—in this case the Toy Safety Committee.
8.10In January 2015, following a recommendation by the European Food Safety Authority, the Commission proposed to the Toy Safety Committee to reduce the maximum safe limits for lead in toys. However, in the absence of a qualified majority, the committee was unable to adopt a favourable opinion on the proposal.
8.11In such an eventuality, the regulatory procedure with scrutiny requires the Commission to formally submit a proposal to the Council in the form of a Council Directive, which it did on 13 September 2016. The legislative procedure to be followed mirrors the consent procedure, where the Council votes on a proposal first (and only once) and then—if the Council supports the legal text—submits it to the European Parliament for final approval.
8.12As the proposal was submitted for formal consideration by the Council, the Minister for Small Business, Consumers and Corporate Responsibility (Margot James) submitted an Explanatory Memorandum to the Committee on 30 September 2016. In the Memorandum, the Minister explained that the Government was still considering its position on the lower safety limit for lead in toys. The Directive was subsequently endorsed without discussion by the Environment Council at its meeting on 17 October 2016.
8.13The Committee wrote to the Minister on 19 October 2016 asking her to set out the Government’s position on the proposal. The Minister responded on 14 February 2017, noting that the Government believed the Commission’s assessment of the likely health benefits of the proposal were “very optimistic” given that children’s exposure to lead from toys was small in comparison to exposure through the environment, food and water. She also confirmed that the Government had abstained from voting in the Council in October 2016 to reflect the fact that the Committee still had the document under scrutiny.
8.14Before the Directive can be formally adopted, it must also be approved by the European Parliament. The Parliament is expected to vote on the proposal in the coming months, and the Minister has indicated she expects it to approve the Directive. It would then enter into force in the second half of 2018.
8.15This proposal to lower the lead content of toys has an unusual procedural history, having originated as an implementing measure in a Comitology procedure. It was then submitted to the Council as a formal proposal for a Directive, after the Member States’ technical experts failed to reach agreement on it. We note that it apparently took the Government over two years to form an opinion on the merits of the proposal, as the operative parts of the proposal originally put to the Toy Safety Committee in January 2015 and the subsequent proposal for a Directive submitted to the Council in September 2016 are identical.
8.16With respect to the substance of the new Directive, we note that the Government believes the Commission may have overstated the health benefits of further reducing the lead content of toys. However, as over four-fifths of all toys marketed in the EU are produced in China, any impact on UK businesses appears to be negligible. Considering, moreover, that the Directive has already been approved by a qualified majority of Member States and will not be subject to further consideration in the Council, we are content to clear it from scrutiny.
8.17We also thank the Minister for confirming that the Government abstained from voting at the Environment Council in October 2016 as we had the proposal under scrutiny at the time.
8.18We note that the Toy (Safety) Regulations 2011, which transpose the Toy Safety Directive in the UK, contain ambulatory references to the limits set out in the Annex to the Directive. In other words, the Regulations do not explicitly incorporate the specific limits for chemicals such as lead, cadmium and mercury into UK law. As a result, the transposition measure is directly dependent on the Directive and cannot operate independently. The Minister notes that this means that “no change will be made to the UK legislation” as a result of the updated restrictions on lead contents, because the Regulations will simply continue to refer to the updated Annex in the EU’s Official Journal.
8.19However, the use of ambulatory references to transpose EU law raises a more fundamental question in view of the UK’s forthcoming exit from the EU. At the moment the UK ceases to be an EU Member State, it will no longer be bound by the provisions of the Toy Safety Directive. However, clearly the transposing Regulations would be deprived of their effect unless either the ambulatory references were maintained, or the limit values were explicitly incorporated into UK law.
8.20If the ambulatory references in the Toy Safety Regulations were to be maintained, the day-to-day operation of the UK’s legal framework in this area would be dependent on an external source of law. Given the nature of ambulatory references, UK businesses would also be bound by any future amendments to the Directive, over which the UK would have no say.
8.21On 19 October 2016, the Committee asked the Minister for Small Business and Consumers (Margot James) to communicate the Government’s position on the proposal as soon as it was established. The Minister responded with the requested information on 14 February 2017.
8.22In her letter, the Minister explains that the Government had not been able to support the lower limit for lead in toys:
“[There] is insufficient evidence that the [the lower limit] would be effective. (…) We regard the estimated health benefits set out in the Commission Impact Assessment, circulated alongside the explanatory memorandum, to be very optimistic, and this view is shared by Public Health England. The Commission acknowledges that the proportion of children’s lead exposure from toys is small in comparison to environmental exposure and lead in food and water. This does not appear to be adequately reflected in the calculation of the potential health benefits.”
8.23In terms of the costs of the proposal, she adds:
“The Commission proposals would, however, impose new costs on manufacturers through increased cost for testing to ensure compliance with the new limits, and could impact on consumer choice in the marketplace (…). The Impact Assessment also estimated that across Europe the costs would be up to 662 jobs lost (…). We have not undertaken a separate estimate for the UK. The toy manufacturing industry in the UK is relatively small (…). It is worth noting that 85–90% of toys are manufactured in China, and it is primarily manufacturers located there that are affected.”
8.24Finally, with respect to the Council vote in October 2016, the Minister confirms that the UK Government abstained and placed a scrutiny reserve resolution to reflect the fact the proposal was still under scrutiny. She adds the European Parliament is scheduled to vote on the Directive in the coming months, and is expected to approve it.
50 accompanying the proposal for a Council Directive.
51 The full text of the Toy (Safety) Regulations 2011 is available .
52 on the safety of toys.
53 on the exercise of implementing powers conferred on the Commission.
54 A to align a number of existing EU Directives and Regulations to the new structure of Implementing and Delegated Acts introduced by the Lisbon Treaty is currently under consideration in the Council and the Parliament. This would replace the regulatory procedure with scrutiny in the Toy Safety Directive with the procedure for adopting Delegated Acts.
55 The weighting of each Member State’s vote to determine whether a Qualified Majority is reached was, in this case, the same as the one that applied to voting in the Council prior to November 2014.
56 The delay between the rejection of the proposal in committee and its eventual resubmission to the Council 18 months later was the result of scientific question on whether the proposed possible exposure to lead should be calculated on a weekly or daily basis.
57 The full text of the proposal for a Directive is available .
58 submitted by the Department for Business, Energy and Industrial Strategy (30 September 2016).
59 (17 October 2016).
10 March 2017