EU Court of Justice upholds annulment of titanium dioxide carcinogen classification

Titanium dioxide is used in the form of a white pigment, in various products, including paints, medicinal products, foodstuffs and toys. 

In 2016, the Agence nationale de sécurité sanitaire de l’alimentation, de l’environnement et du travail (National Agency for Food, Environmental and Occupational Health and Safety (ANSES), France) submitted to the European Chemicals Agency (ECHA) a proposal for classification of titanium dioxide as a carcinogen by inhalation. 

The following year, the ECHA Committee for Risk Assessment (RAC) adopted an opinion stating that the classification of that substance was justified. On the basis of that opinion, in 2019, the European Commission adopted a regulation, proceeding with the classification and labelling of titanium dioxide. 

More specifically, according to the Commission, that substance was suspected of being carcinogenic to humans by inhalation, in powder form containing 1% or more of particles of a diameter equal to or below 10 μm. 

Various manufacturers, importers, downstream users and suppliers of titanium dioxide challenged that classification and labelling before the General Court of the European Union

By judgment of 23 November 2022, the General Court annulled the contested classification and labelling. It was found, in particular, that the Commission had committed a manifest error in its assessment of the acceptability and reliability of a scientific study on which the classification had been based. France and the Commission appealed to the Court of Justice against that judgment of the General Court. 

By this judgment, the Court of Justice dismisses those appeals and thus upholds the judgment of the General Court and the annulment of the contested classification of titanium dioxide as a carcinogen. 

According to the Court of Justice, even though the General Court exceeded the limits of its judicial review, the annulment of the contested classification and labelling is nevertheless justified. The General Court was fully entitled to hold that the RAC had failed to take into account all the relevant factors for the purposes of assessing the scientific study in question.