REACH in concrete terms

On January 4, our colleagues at Feelfarbig published a very interesting interview with lawyer Martin Ahlhaus, an expert in chemicals and substance law, on the subject of REACH. We asked Mr. Ahlhaus from Produktkanzlei Augsburg and other experts again to clarify what REACH actually means for you.

Three things first:

1. We are only writing here as it is, we did not write this REACH regulation. So please don’t get angry with us.
2. You should definitely read this article to the end!
3. Here too, nothing is eaten as hot as it is cooked.

REACH regulation (2022) and pigment ban (2023) are two different things

As this is still being mixed up, here again for clarification: the REACH regulation that has just come into force is NOT about the pigment ban (Blue-15, Green 7). In fact, dangerous (carcinogenic) additives have been banned. Of course, as always, they overshot the mark a little, but in principle this regulation is not entirely unfounded.

Punishable even without a specific ordinance in Germany

Even if there is still no German concretization/regulation for the European regulation, the REACH regulation is nevertheless valid and legally binding in all EU countries with effect from 4.1.2022. Although no penalties have yet been set for violations in Germany, the following still applies: anyone who tattoos non-REACH-compliant inks from 4.1.2022 onwards is committing a dangerous bodily injury and is therefore liable to prosecution in any case.

Documenting the disposal of old paints

This means that tattoo artists and studio owners have been obliged to dispose of old inks since January 4, 2022 and to document this accordingly in order to reliably rule out any illegal use. However, as the inks are now dangerous goods (hazardous ingredients), it is better not to publish a video of how to simply dispose of this hazardous waste in household waste. This is NOT suitable evidence.

The right thing to do would be to register a hazardous waste disposal (small quantities) with your local waste disposal company, bring your inks there and get a receipt, including a specific name (e.g. “47 bottles of tattoo ink from different manufacturers”). This way you also have a suitable proof of disposal.

Due diligence: A “REACH-compliant” label is not enough

But now, of course, you need new, REACH-compliant paints. The expert Ahlhaus, who has been dealing with the REACH regulation for 15 years, rightly points out: “A certificate from the seller does not exempt the buyer from carrying out their own inspection.” But what does such a check look like?

Regulation (EC) No. 1907/2006 of the European Parliament and of the Council, Annex XVII, point 75, sub-point 7 specifies how a REACH-compliant tattoo ink must be documented by the manufacturer. The following information must therefore appear on the bottle, packaging or separate instructions for use (if the bottle and packaging are too small) of the tattoo ink:

• The text “Mixture for use in tattoos or permanent make-up”.
  Statements such as “EU compliant” or “REACH compliant” are not sufficient.
• A reference number to uniquely identify the batch
• A list of ingredients
• Safety instructions for use (storage, shelf life, shelf life after opening, …)
• The note: “Contains nickel. May cause allergic reactions.”
• The note: “Contains chromium (VI). May cause allergic reactions.”

Furthermore, the manufacturer must generally publish a so-called safety data sheet (SDS) for each of its paints, in which any hazards and their handling are pointed out. And all this in the language of the country in which the paint is marketed, i.e. in German in our case.

The following things can now be expected of a tattoo artist in terms of due diligence:

• Are the details of the tattoo color as requested (and described above)?
• Is the information plausible? Does this mean that any hazard information on the bottle (hazard symbols) can also be found in the SDS and vice versa?

If one of these points is not fulfilled, you can assume that you are at risk of liability if you use these colors anyway. Whether in the studio or at home.

Fortunately, you cannot be expected to determine whether the ingredients of a paint are REACH-compliant. Here you can (and should) rely on your suppliers within the EU, who are liable as importers. However, if you order paints from outside the EU, you are liable.

Obligation to document tattoo colors

You shouldn’t stop reading now, because there’s more to come! The following small paragraph can still be found in the regulation:

“Before using a mixture for tattooing purposes, the person using the mixture shall provide the person undergoing the procedure with the information stated on the packaging or in the instructions for use in accordance with this paragraph.”

Mr. Ahlhaus expressly pointed this out once again: According to current legal opinion, “to make available” denotes an active process. It is therefore not sufficient to simply display the information on the tattoo inks used (from the bottle, packaging or instructions for use) in a folder on the counter or publish it on your own website. It would be possible to send this information by email before the appointment, but it would also have to contain the specific information (which colors were actually used at the appointment, with which batch number and shelf life) and that’s where it gets difficult.

In plain language, this means that you must actively inform your customers about the colors used, their ingredients, possible allergic risks, instructions for use, shelf life and batch number at every appointment. And in order to be able to prove this in the event of a dispute, you should of course document this.

Now some people will ask themselves who controls this at all. This is a legitimate objection. However, the risk lies more in liability: if there is a legal dispute with a customer, it is now easy for the other party’s lawyer to prove a lack of due diligence if this information is not documented. The tattoo artist could even be accused of using illegal inks. As a breach of the REACH regulation is tantamount to dangerous bodily harm, the documentation of information about the inks used is at least as important as the well-known declaration of consent. Otherwise, tattoo artists AND studios could be at least partially liable in the event of a dispute (see our article “Studios are liable for artists”).

And since the “information” in question also contains the batch number and expiration date, this effectively means that you can no longer avoid documenting all the ink used for each tattoo appointment.

And for the smart ones:

1. It is difficult to quickly submit a photo of anycolor bottles at a later date due to the batch number and expiration date.
2. If you think you don’t need the color documentation in the future, you can actually save yourself the declaration of consent.

Yet easier to implement than feared

But there is no need to panic. The obligation to provide information can simply be divided into two steps:

1. A passage is added to the declaration of consent for the customer to tick: “I confirm that I have been provided with the information required by the applicable REACH Regulation (EC) No. 1907/2006 on the tattoo inks used. I will receive information on the shelf life and batch (for reasons of practicability) during the tattooing process itself.”
   At the end of the EVE, simply attach one or two pages with a list of all colors from your own stock, regardless of whether they are used at the appointment or not. The list should contain the following information for each color: Manufacturer, name of the paint, ingredients as well as instructions for use and hazards.
2. After the appointment, place all the bottles of paint used in a row so that the batch number and expiration date are clearly visible, take a photo of them and file it with the customer and the appointment.
   As an alternative to such a photo, create a form with a list of the paints from your stock, including expiry date and batch number, and then only tick those that were used at the appointment.

But be careful with the photos/forms: Possible complaints from customers often arrive several months or even years after the actual appointment. Therefore, proper filing is crucial so that the color documentation can still be found after 1-2 years. And as a studio owner, even if the artist is no longer there.

It would be desirable for paint manufacturers to make a list of their paints with names, ingredients and information on use and hazards available for customers to download from their websites. This would make life much easier for everyone.

We offer the solution

Kisscal customers have it easy here: I can take a photo of the colors for a specific appointment with just a few taps (e.g. with my tablet). Or, as a kissSign customer, I can use a ready-made form for appointment documentation. Simply fill it out digitally (on the tablet) and sign it in a legally secure manner. The customer automatically receives a copy of the documentation by email, so everything is completely paperless. The filing for the customer and appointment/project is of course also fully automatic.

Even as a studio owner, I can simply search for a customer years later, click on their appointment and I have all the color documentation for this tattoo.

And of course, we will adapt our forms and declarations of consent from our carefree package immediately to make your life easier. 😉