Helen Middleton, counsel, and Josefine Sommer, senior associate, both from Sidley Austin, discusses microplastics and microbeads, as well as the proposed EU ban.
What are microplastics and microbeads?
“Microplastics” are very small (typically smaller than 5mm) solid particles composed of mixtures of specific polymers and functional additives. Intentionally added microplastic particles are used in a range of products placed on the EU market including fertilisers, plant protection products, leave-on and rinse-off cosmetic products, household and industrial detergents, cleaning products, as well as paints and products used in the oil and gas industry.
Microplastics can function as bulking agents and to prolong shelf life by trapping and adsorbing degradable ingredients and as film-forming agents in leave-on products such as sunscreens and makeup (foundations, lipsticks, etc.) to improve the skin texture, enhance the tinting strength of pigments or increase the adhesion of the powder. The pharmaceutical industry has used microbeads as a controlled delivery system for drugs. Microbeads are also used as infill in artificial turf playing fields. The European CHemicals Agencies (ECHA) estimates that microplastics added to products result in close to 36,000 tons of plastic getting released into the environment every year.
“Microbeads”—which are what many think of when they hear the word “microplastics”—are manufactured solid plastic particles of less than one millimetre in diameter. They were not regularly used commercially until the 1990s when manufacturers began adding them to hundreds of personal care products, including face washes, toothpastes and exfoliators, for their abrasive properties.
Are microbeads harmful and are they banned?
In 2013, some cosmetic and pharmaceutical companies started to commit voluntarily to removing microbeads from their cosmetic and personal care products globally and, more recently, a number of governments have placed limits on the manufacture and sale of products containing microbeads.
The Netherlands was the first country to announce its intent to be free of microbeads in cosmetics by the end of 2016 and legislated a ban on the import, manufacture, and sale of microbeads in rinse-off cosmetics.
In January 2018, a ban on the use of microbeads in rinse off cosmetics and personal care products came into effect in the UK with The Environmental Protection (Microbeads) (England) Regulations 2017. The scope of this UK legislation is broader than that of the US Microbead-Free Waters Act, approved by the US Government in 2015, and which allows the use of biodegradable plastics. The UK’s Department of Environment, Food and Rural Affairs made it clear that biodegradable plastics are covered by the UK ban in light of their focus on whether materials labelled compostable or biodegradable may require specific conditions to break down completely.
In April 2020, China’s National Development and Reform Commission (NDRC) issued draft legislation for public consultation specifying the details of China’s pending microbead ban. China’s proposed legislation is targeting only rinse-off products. Also, formulators and suppliers will likely not see this ban as much of a challenge since other countries have already banned microbeads and are adapting by either foregoing microbeads or using alternatives.
Several other countries have banned the use of microbeads in certain products - in particular in rinse-off cosmetics - including Canada, France, New Zealand, Sweden, Taiwan, Ireland, Italy, India and Thailand.
With several governments restricting or banning the use of plastic microbeads in cosmetic products, cosmetic manufacturers have replaced them with naturally abrasive materials including cocoa beans, ground almonds, ground apricot pits, sea salt, ground pumice and oatmeal. These materials mainly biodegrade when released in the environment. Plastic microbeads were originally often preferred over these materials because of their regular shape, lack of sharp edges, and sterile nature.
Is a wider ranging ban next?
In January 2019, ECHA proposed a more wide-ranging restriction on intentional uses of microplastics in products placed on the EU/EEA market. ECHA proposed to add microplastics to the EU’s main chemicals legislation, Regulation 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), which would mean that microplastics can only be used if they comply with the requirements set out in Annex XVII to REACH.
Before the proposal can be adopted by the European Commission, it has been subject to a six-months public consultation, and ECHA’s Committee for Risk Assessment (RAC) and Committee for Socio-Economic Analysis (SEAC) must assess the proposal. RAC considers whether the proposal reduces risk to human health or the environment, and SEAC considers the socio-economic impacts of the suggested restrictions. SEAC’s draft opinion is subject to a public consultation based on which it will adopt its final opinion.
In June 2020, RAC issued its opinion supporting the restriction of the use of intentionally added microplastics while recommending more stringent criteria for biodegradable polymers. SEAC issued its draft opinion also in June. Its final opinion is due by the end of 2020.
RAC’s opinion supports ECHA’s proposal to restrict the use of microplastics that are intentionally added to products on the EU/EEA market in concentrations of more than 0.01 % weight by weight. The restriction proposal was developed in the context of the EU Plastics Strategy, which aims at circular plastics economy and contributes to reaching the 2030 sustainable development goals, the global climate commitments, and the EU's industrial policy objectives. ECHA’s proposal sets out specific test methods and pass criteria for identifying biodegradable polymers, which are excluded from the restriction.
Once SEAC’s opinion is published, ECHA will send both opinions to the European Commission. The Commission will consider the opinions and will determine whether the conditions for the restriction are met. It will then prepare a proposal to amend Annex XVII to REACH, which must be adopted first by the Member States. This vote is followed by a period of scrutiny during which the European Parliament and the Council can object. Absent any objections, the restriction is adopted. The planned timeline indicates that the REACH restriction on microplastics will be adopted and enter into force in 2022 with transitional periods for certain applications.
How will this (disproportionately) impact cosmetics?
The ECHA has suggested that cosmetics and personal care formulations contribute 2% of the microplastics to be controlled by this legislation, as microplastics are most commonly used in the agricultural sector, yet cosmetics could bear 79% of the total costs associated with the restriction across all industries. A large proportion of these costs would be on reformulation, 90% of which would fall on the cosmetics sector.
Europe is the world’s largest cosmetics market. Cosmetics Europe and its member associations will continue their argument that the ECHA’s proposal to restrict microplastics on the EU market remains disproportionately weighted against beauty and personal care. The Industry Association will bring forward its arguments, along with additional data and information, in an upcoming 60 day consultation period.
Some have pushed back against a broad ban on microplastics, pointing to the unscientific definition of ‘microplastic’, and arguing that replacing the materials would be technically challenging and expensive, and would result in no real benefit to the marine environment. Concerns also have been raised that focusing regulatory efforts on this tiny contribution will detract attention from addressing major sources of plastic waste.
According to a 2018 presentation by trade association, Cosmetics Europe, a ban would force the industry to find new formulations for 24,172 products with no readily available alternative, and cost the sector more than €12 billion a year in lost revenue.
U.K. industry trade body The Cosmetic, Toiletry and Perfumery Association (CTPA), was critical of the ECHA's proposal, arguing that there isn't scientific evidence that the microplastics used in cosmetics are a source of marine pollution.
"CTPA is very disappointed with the European restriction proposal, because it will have a disproportionate impact on the cosmetics industry with no measurable benefit to the marine environment," CTPA director-general said in a statement, warning that the ban could "severely impact the cosmetic products available to consumers."
The ECHA has said the proposed ban is affordable and will provide a transition period that gives the industry time to adjust. The proposal is still subject to further assessment.
Concluding remarks: How should affected parties be responding at this time?
Significant concerns have been raised about the overall impact of prior prohibitions focusing on microbeads given the scale of the microplastics phenomena. The proposed EU ban on certain microplastics is wider than just microbeads and will impact many industries. Companies should be keeping an eye on the progress of the legislation and review their product portfolio and plan for potential reformulations, their costs and timelines.