Towards a European ban on microbeads
The Plastic Soup Foundation is campaigning to ban microbeads in cosmetics products. Students of the Leiden Advocacy Project on Plastic (LAPP) wrote a memo providing legal guidance on the prohibition of microbeads in the EU.
Have you ever thought about plastic in your toothpaste? Probably not. It has been common practice for the cosmetics industry to add tiny little particles of plastic, called microbeads or microplastics, to everyday products such as shampoo, scrub products and toothpaste. Since the microbeads end up in our household waste water, they eventually end up in the ocean leading to environmental pollution on a global scale which is probably irreversible. The tiny size of the particles makes them hardly visible to the naked eye, so they are a more or less hidden threat to the environment and human health.
The Plastic Soup Foundation
Since 2012, the Dutch NGO the Plastic Soup Foundation (PSF) has been campaigning for a European ban on microbeads in cosmetics. Although the campaign was initially inspired by environmental considerations, recent research has identified serious human health risks due to exposure to microplastics, for example through the consumption of seafood and other food products, drinking water and through the air. Commissioned by the European Commission, consultancy agency Eunomia identified three options to regulate microbeads: the Cosmetics Regulation, the REACH Regulation and the Ecodesign Directive. The Plastic Soup Foundation wanted to know whether these regulations are indeed suitable for accommodating a ban on microplastics and what procedures should be followed. The Leiden Advocacy Project on Plastic (LAPP) was requested to review the three options from a legal perspective.
The Cosmetics Regulation is more or less applicable to all cosmetics products. It aims at a high level of human health protection while establishing an internal market for cosmetics. Since the Cosmetics Regulation only regulates the safety of a product during normal use, and thus not indirectly via the food chain or water, the product itself should pose a risk to the health of the user. This could be true for products containing microbeads such as toothpaste and lip gloss, which can be swallowed, and creams, which can penetrate the skin. The EU Scientific Committee on Consumer Safety plays a central role in assessing whether substances can be restricted or banned for use in cosmetics products. Restricting microbeads in cosmetics products requires at least one amendment to the Annexes and the standard legislative procedures of the EU will apply.
While the Cosmetics Regulation only applies to cosmetics products, the REACH Regulation regulates the registration, evaluation, authorisation and restriction of chemicals in general. The purpose of the REACH Regulation is to ensure a high level of protection of human health and the environment, as well as the free movement of substances on the internal market. There are several levels of restriction. A substance may be used under certain conditions or banned in a specific product category or - in the case of the most dangerous substances – may not be put on the market or allowed to be used at all. From a quick examination of the list of restricted substances, it appears that most of the substances are placed on the restriction list for reasons pertaining to risks to human health, primarily due to being carcinogenic or toxic for reproduction. This might give rise to the suggestion that plastic particles may not reach the severity threshold required by the REACH, but further research regarding the effects of microplastics on organisms including humans should clarify this. Moreover, a substance can also be restricted for environmental reasons, such as the persistence of substance. This could be the case for microplastics, because plastics are highly persistent and hardly degrade at all under normal circumstances. A first step in restricting microbeads under the REACH Regulation is the compiling of a ‘dossier’ on substances by the European Chemicals Agency. After assessments by several committees and multiple consultation rounds, an amendment must be adopted. Further scientific research regarding the toxicity and persistence of microplastics could be helpful in this procedure.
While the Ecodesign Directive was adopted in 2010 with the aim of improving the energy efficiency of products, it has been suggested that the directive is also suited to improving a product’s resource efficiency. Its preamble explicitly refers to ‘extending its scope beyond energy-related products’ and the Commission has called ecodesign pivotal in minimizing waste. By setting standards regarding waste treatment and recycling, the use of microplastics could be banned in certain product groups. But, before this can happen, an amendment must be adopted to include resource efficiency as a leading requirement for design standards. Hence, banning microbeads via the Ecodesign Directive requires multiple amendment procedures; first to amend the Ecodesign Directive itself and second to set standards for certain products.
As microbeads are increasingly being acknowledged as an urgent environmental problem, a quick solution is preferred. The three options studied all require multiple procedures and further implementing measures to establish a complete ban on microplastics in all cosmetics products, but also in other products - very much a time-consuming process in the EU. To speed up the removal of microbeads from cosmetics products, the PSF also looked at the adoption of voluntary agreements with the European cosmetics industry. However, Cosmetics Europe, the European branch organisation, was very hesitant to discuss any branch agreement for reasons related to EU competition law. Voluntary agreements between manufacturers are regulated by the rules of EU competition law and huge fines have been issued for price fixing in the margins of a voluntary environmental agreement. Therefore, enthusiasm for branch agreements has generally faded. In our view, a voluntary phase-out of microbeads by manufacturers remains a possibility, but only under the strict conditions of EU competition law and only on a completely independent and voluntary basis. A further issue is the adoption of an all-encompassing definition of microbeads, as microbeads can consist of several kinds of microplastics. The definition of a substance is essential when incorporating it into a directive or regulation. National initiatives banning microbeads, such as those in the United States and Canada, may function as guidelines on that matter and will be further studied by LAPP.
While a definite solution may take some time, the current momentum for action on plastic pollution, as well as resource efficiency and the circular economy, should stimulate the European Union to act powerfully and effectively. At LAPP, we are honoured that our work is contributing and will continue to contribute to the campaign of PSF and other organisations for a ban on microbeads.