Proposal for a COUNCIL DIRECTIVE amending for the fifteenth time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations
Date: 1993-10-18
Institutions: European Commission
Subjects: aerosol, consumer protection, dangerous substance, inflammable product, marketing restriction, marketing standard

COMMISSION OF THE EUROPEAN  COMMUNITIES 

COM(93) 499 final  - SYN 473 

Brussels,  18 October  1993 

'Sir J" 

Proposal  for a 

amending  for  the  fifteenth  time  Directive  76/769/EEC  on  the 
approximation of  the  laws, regulations and administrative provisions of 
the Member  States  relating  to restrictions on  the marketing  and  use of 
certain dangerous substances and preparations. 

(presented by the Commission) 

£ 

Explanatory Memorandum 

I. 

Introduction 

The  French  authorities notified  the Commission  in early  1992  that  they 
had  taken  two  measures  in  the  framework  of  Article  10  of  Directive 
75/324/EEC  on  aerosol  generators,  thereby  employing  the  safety  clause 
of  that directive  for  the specified period of one year. 
The  first  of  these  measures  imposed  mandatory  labelling  requirements, 
subject  to  exemption,  for  aerosol  generators  containing  flammable 
gases and  the second provided  for a ban on the manufacture,  importation 
and  marketing  of  aerosols  containing  flammable  gases  and  intended  for 
entertainment and decorative purposes. 

The Commission  having examined  the French measures and having consulted 
experts  from  all  Member  States  gave  notice  of  its  intention  to  adapt 
Directive  75/734/EEC  to  technical  progress  with  regard  to  aerosol 
generators  containing  flammable  substances  and  to  propose  to  the 
Council  an  amendment  to  Annex  1  of  Council  Directive  76/769/EEC  to 
provide  for  harmonized  limitations  on  the  use  of  flammable  gases  in 
aerosol  generators  intended  for  entertainment  and  decorative  purposes. 
The  present  proposal  concerns  the  amendment  of  Annex  1  to  Directive 
76/769/EEC. 

The  Commission  considers  that  this  proposal  is  consistent  with  the 
Principle of  Subsidiarity  and with  the requirement  under  the Treaty  to 
take  as  a  base  in  its  harmonization  proposals  a  high  level  of 
protection concerning  health and consumers. 

What  are  the objectives of  the proposal  in relation to  the  Community's 
obi Igat ions ? 

One objective  is to establish  uniform  rules to allow a maximum  of  free 
circulation  in the products concerned.  A second objective  is to ensure 
that  the  rules  established  provide  a  high  level  of  protection  to  the 
consumer.  Only  the  Community  can  develop  uniform  rules  meeting  the 
necessary  requirements  and  the  Community  is obliged  to  act  under  the 
Treaty. 

Does this  initiative arise out  of  an exclusive Community  competence or 
a shared competence  ? 

It  arises  out  of  an  exclusive  Community  competence.  This  competence 
was  established  by  Council  Directive  76/769  and  the  initiative  is 
simply  the 15th Amendment of  this Directive. 

What  courses of action are available  to the Community  ? 

The only way of  realising  the stated objectives  is to  introduce uniform 
rules  for  the  products  concerned  by  amending  Annex  I  to  Directive 
76/769/EEC. 

Are  uniform  rules  necessary  ?  It  is  not  sufficient  to  establish 
targets to be  implemented  by Member  States ? 

The only way of  realising  the objective of maximizing  free  circulation 
is  to  establish  uniform  rules  at  Community  level.  The  uniform  rules 
are  thus  necessary.  It would  not  be  sufficient  to establish  targets; 
these would  be  implemented  differently  by Member  States  and  the  result 
would be barriers  to trade. 

11. 

Background 

Layer 

Implementation of  the Montreal  Protocol  on substances that deplete  the 
Ozone 
of 
chlorofluorocarbons, which  are non-flammable, by  substitutes  which  are 
often  flammable.  Specifically  the  recent  past  is  characterised  by 
increasing  use  of  flammable  gases  in  aerosol  generators  intended  for 
entertainment and decorative purposes. 

substitution 

progresssive 

has 

led 

to 

A number  of  accidents  have occured  as on  result of  such  increasing  use 
of  flammable gases.  For example young children  in France have suffered 
burns  through  fires  involving  aerosol  generators  producing  artificial 
snow.  Further  accidents  are  likely  with  other  aerosol  products 
intended  for  entertainment  and  decorative  purposes  as  these  are  often 
used  in close proximity  to the naked flame. 

Given  the hazard  associated  with  the use of  flammable gases  in aerosol 
generators  and  that  consumers  may  be  exposed  to  risk  during  everyday 
situations  it  is desirable  that  the use of  such  flammable  gases  should 
be  limited  in particularly  high  risk  situations  such  as use  in aerosol 
generators for entertainment  and decorative purposes. 

III. 

Substances  to be  limited 

Substances, use of  which  needs  to be  limited, are  those  classified  or 
provisionally  classified  as  flammable,  highly  flammable  or  extremely 
flammable according  to Directive 67/548/EEC. 

H 

IV. 

Existence of Substitutes 

The systems affected  by  this proposal  are simple  in nature  and open  to 
alternative solutions.  For example, flammable gas propellants could be 
replaced  by  mechanical  pumps  in  some  situations  and  by  inert  gas 
propellants  in  other  situations.  In  a  small  minority  of  cases  a 
dangerous product may simply  have to be eliminated. 

V. 

Effect on  Industry 

Overall  the  impact  on  the  industries  concerned  is  likely  to  be 
insignif icant. 

VI. 

Conclusion 

It  is concluded  that  the  use of  flammable  gases  in aerosol  generators 
intended  for  entertainment  and  decorative  purposes  poses  a  danger  to 
the  health  of  consumers  and  particularly  to  children.  The  strategy 
proposed  therefore  is  to  ban  the  use  of  substances  classified  or 
provisionally  classified  as  flammable,  highly  flammable  or  extremely 
flammable  in such  uses.  The ban would  not  apply  however  in situations 
where  it has been demonstrated  on  the basis of  approved  tests  that  the 
aerosol  generator  product  does  not  present  risk  of  flammability  under 
normal  and reasonably  foreseable conditions of use. 

The  test  methods  necessary  for  implementation  are  being  developed  in 
the  framework  of  adaptation  of  Directive  75/324/EEC  (aerosol 
generators) to technical  progress. 

VII. 

Conformity with  the Treaty 

It  is clear  from  the foregoing  that  this proposal  is  intended  to afford 
a high  level of protection  for consumers and  is therefore  in conformity 
with Article  100 A  (3) of  the Treaty. 

The  proposal  does  not  call  for  any  special  provisions  of  the  kind 
referred  to  in Article 8c sof  the Treaty. 

VIII.  Consultation  of  the  European  Parliament  and  the  Economic  and 

Social  Committee 

In  compliance  with  Article  100A  of  the  Treaty,  the  Cooperation 
Procedure with the European Parliament  is applicable.  The Economic and 
Social Committee has to be consulted. 

6' 

Proposal  for a 
COUNCIL DIRECTIVE 

amending  for  the  fifteenth  time  Directive  76/769/EEC  on  the 
approximation of  the  laws, regulations and administrative provisions of 
the Member States relating  to restrictions on the marketing and use of 
certain dangerous substances and preparations. 

THE COUNCIL OF THE EUROPEAN COMMUNITIES, 

Having  regard  to  the  Treaty  establishing  the  European  Economic 
Community, and  in particular Article 100a thereof. 

Having regard to the proposal from the Commission,1 

In cooperation with the European Parliament,2 

Having regard to the opinion of the Economic and Social Committee,3 

Whereas Article 8A of  the Treaty  establishes  an area  without  internal 
barriers in which the free circulation of goods, of, persons-, of services 
and capital  is assured-, 

Whereas work on the  internal market should gradually  improve the quality 
of  life, health  protection  and  consumer  safety; whereas  the measures 
proposed  by  this Directive  are  in  line with  the Council  resolution of 
9 November 1989 on future priorities for relaunching consumer protection 
policy;4 

1  0J No 
2  OJ No 
3  OJ No 
4  OJ No C 294 of 23.11.1989 p. 

6 

Whereas  certain  substances  and  preparations  used  in  aerosol  generators 
have a particularly  flammable nature; 

Whereas  risks  to  consumers  arise  from  the  increased  use  in  aerosol 
generators  of  flammable  substances  in  place  of  ch lorofluorocarbons 
(CFC); whereas  such  risks are particularly  acute  in  the case  of  aerosol 
generators used  for entertainment  and decorative purposes; 

progress 

Whereas  part  of  the  increased  risks  can  be  offset  by  adaptation  to 
the 
technical 
harmonization  of  Member  State  laws  on  aerosol  generators  and  the 
remaining  part  of  the  risk  by  limiting  hereby  the  use  of  flammable 
substances  in  aerosol  generators  intended  for  entertainment  and 
decorative  purposes; 

75/324/CEE5 

of  «Council 

Directive 

on 

Whereas  limitations  planned  by  one  Member  State  on  the  placing  on  the 
market  of  certain  aerosol  generators  intended  for  entertainment  and 
decorative  purposes  directly  affect  the  completion  and  functioning  of 
the  internal  market;  whereas  it  is  therefore  necessary  to  approximate 
the  laws of  the Member  States  In this field  and consequently  amend Annex 
I to Directive  76/769/EEC,6 as  last amended  by Directive  91/339/EEC;7 

Whereas,  according  to  the scope and  effects  of  the  proposed  action, the 
Community  measures  envisaged  by  this  directive  are  not  only  necessary 
but  also  indispensable  for  the  attainment  of  the  stated  objectives and 
that  these objectives  cannot  be achieved  by  Member  States  individually, 
and  that  furthermore  their  attainment  at  Community  level  is  already 
provided  for  by  Directive 76/769/EEC; 

HAS ADOPTED THIS DIRECTIVE: 

Art icle 1 

Annex  I  to  Directive  76/769/EEC  is  hereby  amended  as  set  out  in  the 
Annex  hereto. 

Art icle 2 

1.  Member  States  shall  adopt  and  publish  the  laws,  regulations  and 
administrative  provisions necessary  to comply  with  this Directive no 
later  than  1 year  after  the date of  its adoption  and shall  forthwith 
inform  the  Commission  thereof.  They  shall  apply  these  provisions 
from  (3 months  after  the date stated  above). 

5 
6 
7 

OJ No L  147, 9.10.1975,  p. 40 
OJ No L 262, 27.9.1976, p.201. 
OJ No L 186 Of  12.7.1991  p. 64 

£ 

2.  When Member  States adopt  the above mentioned provisions, these shall 
contain  a  reference  to  this  Directive  or  shall  be  accompanied  by 
such  reference  at  the  time  of  their  official  publication.  The 
procedure  for  such  reference shall  be adopted by  the Member  States. 

This Directive  is addressed  to the Member States. 

Article 3 

Done at Brussels, 

For  the Council 

X 

kUNFX 

ww.  Substances 

ei ther 

-  appearing  in Annex  I 
to  Directive  67/548/EEC 
which  are  classified  as 
flammable,  highly  flammable 
or  extremely  flammable  and 
label led  as  such 

or 

-  not  yet  appearing  in 
Annex  I to  Directive 
67/548/EEC  but  conforming 
to  the  criteria  of  flammability 
of  Annex  VI  to 
Directive  67/548/EEC 
and  being  provisionally 
classified  and  labelled 
as  flammable,  highly  flammable, 
or  extremely  flammable  according 
to Article  5  para  2 of 
Directive  67/548/EEC 

May  not  be  used  as  such  or 
in  the  form  of  preparations 
in aerosol  generators  marketed 
and  intended 
for  entertainment  and 
decorative  purposes  in 
household  situations  such  as 
the  fol lowing: 
-  decorative  metallic  glitter 
destined  mainly  for  parties 
-  decorative  snow  and  frost 
-  fun  breaking  of  wind 
-  silly  str ing 
-  fun  excrement 
-  horns  for  parties 
-  decorative  disappearing 
flakes  and  foams 
-  artificial  cobwebs 
-  funny  stink 

By  way  of  derogation  this  provision 
shall  not  apply  where  it  has  been 
demonstrated  on  the  basis  of 
documented  appropriate  tests  and 
analyses  by  the  person  responsable  for 
the  placing  on  the  market  of  these 
aerosol  generators  that  while 
containing  flammable  substances  and 
preparations  the  aerosol  generators  do 
not  present  a  risk  of  flammability 
under  normal  and  reasonably  forseable 
conditions  of  use.  In  this  case  the 
quantity  of  flammable  substance(s)  in 
the 
be 
indicated  clearly  and  indeliby  on  the 
label  by  the  phrase  "contains  x%  by 
mass  of  flammable  substances" 

generator 

aerosol 

must 

3 

FINANCIAL  STATEMENT 

SECTION 1: FINANCIAL  IMPLICATIONS 

1.  Title of operation 

Proposal  for a fifteenth amendment  to Directive 76/769/EEC 

2.  Budget  heading  involved 

Article B5-300:  completing the  internal  market 

3.  Legal  basis 

- Article  100a of  the Treaty 

4.  Description of operation 

4.1  Specific objective of operation 

The proposed operation  involves : 

Restricting  the  use  of  flammable  gases  in  aerosol  generators 
intended  for entertainment  and decorative purposes. 

4.2 Durât ion 

This  is a  "one-off" operation 

4.3 Target population 

Industrialists and consumers 

5.  Classification of expenditure 

Not applicab le. 

6.  Type of expenditure 

None 

Unlike  previous  amendments  to  Directive  76/769/EEC,  the  fifteenth 
amendment  does not  require standardisation work  to be performed  by CEN. 
The  test  methods  necessary  for  implementation  are  being  developed  in 
the  framework  of  adapting  Directive  75/324/EEC  (aerosol  generators) to 
technical  progress using  funds already  allocated  for  this purpose. 

7.  Financial  impact on appropriations for operations 

None 

8.  What  ant I-fraud measures are planned? 

None 

Ax> 

SECTION 2: ADMINISTRATIVE EXPENDITURE 

No new administrative expenditure  is foreseen.  Any meetings to be held 
would  take  place  pursuant  to Directive  76/769/EEC  in  the  framework  of 
which  the  "Technical  Progress  Committee:  Dangerous  Substances  and 
Preparations" would be convoked, and would be covered  by  the budget  for 
that Directive.  The estimated annual  budget  for  this Committee  is made 
up of  174.000 ECU  for meetings of  experts  (01/03/U/080) and  12.000 ECU 
for meetings of  the Committee  itself  (01/03/T/080). 
However, no extra meetings are foreseen at  this time. 

SECTION 3: ELEMENTS OF COST-EFFECTIVENESS ANALYSIS 

The  aim  of  the  proposed  operation  is to  harmonize  restrictions  on 
the  use  of  flammable  gazes  in  aerosol  generators  intended  for 
entertainment  and  decorative  purposes  so  as  to  avoid  creating 
obstacles  to  trade  and, at  the same  time, to provide  a  high  level 
of protection  for consumers. 

The general  objective  is to complete  the  internal market. 

II. Grounds for  the operation 

Harmonization  serves  to  prevent  obstacles  to  trade  and,  at  the  same 
time, to provide a high  level of protection  for consumers. 

III. 

Monitoring  and evaluation of  the operation 

The Committee set up under Directive 76/769/EEC will  be responsible for 
monitoring  the application of  this Directive. 

AA 

ISSN 0254-1475 

COM(93) 499 final 

DOCUMENTS 

EN 

05  06 

Catalogue number : CB-CO-93-534-EN-C 

ISBN 92-77-59827-1 

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