The Environmental Protection (Microbeads) (England) Regulations 2017
Communication from the Commission - TRIS/(2017) 01983
Directive (EU) 2015/1535
Notificación - Oznámení - Notifikation - Notifizierung - Teavitamine - Γνωστοποίηση - Notification - Notification - Notifica - Pieteikums - Pranešimas - Bejelentés - Notifika - Kennisgeving - Zawiadomienie - Notificação - Hlásenie-Obvestilo - Ilmoitus - Anmälan - Нотификация : 2017/0353/UK - Notificare.
No abre el plazo - Nezahajuje odklady - Fristerne indledes ikke - Kein Fristbeginn - Viivituste perioodi ei avata - Καμμία έναρξη προθεσμίας - Does not open the delays - N'ouvre pas de délais - Non fa decorrere la mora - Neietekmē atlikšanu - Atidėjimai nepradedami - Nem nyitja meg a késéseket - Ma’ jiftaħx il-perijodi ta’ dawmien - Geen termijnbegin - Nie otwiera opóźnień - Não inicia o prazo - Neotvorí oneskorenia - Ne uvaja zamud - Määräaika ei ala tästä - Inleder ingen frist - Не се предвижда период на прекъсване - Nu deschide perioadele de stagnare - Nu deschide perioadele de stagnare.
1. Structured Information Line
MSG 001 IND 2017 0353 UK EN 28-07-2017 UK NOTIF
2. Member State
3. Department Responsible
Department for Business, Energy and Industrial Strategy
1 Victoria Street
London, SW1H 0ET
3. Originating Department
Department for Environment, Food and Rural Affairs
Environment, Rural and Marine Directorate
9 Millbank c/o Nobel House
17 Smith Square
London, SW1P 3JR
4. Notification Number
2017/0353/UK - S00E
The Environmental Protection (Microbeads) (England) Regulations 2017
6. Products Concerned
The regulations concern rinse-off personal care products containing microbeads.
“microbead” means any water-insoluble solid plastic particle of less than or equal to 5mm in any dimension.
"rinse-off personal care product" means any substance, or mixture of substances, manufactured for the purpose of being applied to any relevant human body part in the course of any personal care treatment, by an application which entails at its completion the prompt and specific removal of the product (or any residue of the product) by washing or rinsing with water, rather than leaving it to wear off or wash off, or be absorbed or shed, in the course of time;
and for this purpose—
(a) a “personal care treatment” means any process of cleaning, protecting or perfuming a relevant human body part, maintaining or restoring its condition or changing its appearance; and
(b) a “relevant human body part” is—
(i) any external part of the human body (any part of the epidermis, hair system, nails or lips);
(ii) the teeth; or
(iii) mucous membranes of the oral cavity.
7. Notification Under Another Act
8. Main Content
The regulations prohibit the use of microbeads as an ingredient in the manufacture of rinse-off personal care products and the sale of any such products containing microbeads (both as defined in Section 6 above). Breach of a prohibition is an offence.
The prohibition on the manufacture of such products will come into force on 1 January 2018 and the prohibition on the sale of any such products will come into force on 30 June 2018.
Enforcement officers have powers of entry to carry out the necessary investigations in order to determine whether an offence has been committed.
A civil sanctions regime is introduced to enable the regulator to exercise a range of civil sanctions. These are variable monetary penalties, compliance notices, stop notices and enforcement undertakings.
The regulations apply to England only.
9. Brief Statement of Grounds
We are proposing to introduce legislation to ban the manufacture and sale of "rinse-off" cosmetics and personal care products containing microbeads on the grounds that they cause harm to living species in the marine environment.
Up to 680 tonnes of plastic microbeads are used in cosmetic products sold in the UK every year resulting in billions of tiny beads entering our seas annually. These microbeads do not biodegrade and accumulate in the marine environment because, once released in to the environment it is impossible to recover them. Although the precise scale of the impacts from microbeads is unknown, there is evidence that microbeads can be ingested by marine animals which reduces their capacity to digest food and reproduce.
Some businesses have already taken voluntary actions but others still continue to use microbeads. Engagement with the UK cosmetics industry indicates that more than 72% of major companies will have ceased to sell cosmetic products containing microbeads by 2017. In the cosmetics industry, there are suitable, economically feasible alternatives. Microbeads in cosmetics are therefore an avoidable source of marine pollution that should be minimised in keeping with scientific advice.
A ban of this kind would help to improve the state of the marine environment and address public concerns relating to marine environment impacts arising from such cosmetics products.
10. Reference Documents - Basic Texts
References of the Basic Texts: 1. Draft statutory instrument
2. 2-page summary of Defra-funded study showing evidence of harm of microplastics such as microbeads in the marine environment
3. Consultation document of our public consultation on our proposals to ban cosmetic and personal care products containing microbeads that may cause harm to the marine environment
4. Government response to the consultation
11. Invocation of the Emergency Procedure
12. Grounds for the Emergency
14. Fiscal measures
15. Impact assessment
16. TBT and SPS aspects
No - The draft is not a sanitary or phytosanitary measure
Contact point Directive (EU) 2015/1535
Fax: +32 229 98043
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You may submit your contribution in any of the official languages of the EU. However, mind that we will not provide translations of contributions on the site. Additionally we remind you that contributions will only be accepted until 23:59:59 CET of the date of end of the standstill period.
Henkel Ltd. Comments on Notification Number: 2017/353/UK (UK):
The Environmental Protection (Microbeads) (England) Regulations 2017
25 September 2017
Henkel operates globally with three business units in both industrial and consumer businesses thanks to strong brands, innovations and technologies. In its Adhesive Technologies, Beauty Care and Laundry & Home Care businesses, Henkel holds leading positions in many markets and categories around the world.
Henkel is committed to leadership in sustainability. Public concerns expressed over plastic litter in the marine environment was a guiding factor in our early decision to discontinue, in rinse-off cosmetic and personal care products the use of synthetic, solid plastic particles used for exfoliating and cleansing purposes (i.e. plastic microbeads). Even though cosmetic products account for only a very small percentage of any possible environmental impact, the new products we have launched in Europe since 2014 do not contain any ingredients considered as plastic microbeads under the internationally recognized definition developed by the US Personal Care Products Council (see below). This means that Henkel was ahead of the recommendation adopted in October 2015 by Cosmetics Europe (the European Personal Care Association) that solid microplastic particles should no longer be used in rinse-off cosmetic products from 2020 onwards. As of the beginning of 2016, all new Henkel cosmetic products of this type have been formulated worldwide without microbeads.
We therefore do not oppose the UK Government’s plan to introduce a legislative ban on plastic microbeads which reflects the voluntary actions we have already taken.
We however share the concern of the Cosmetic, Toiletry and Perfumery Association (CTPA) that the definition of plastic microbeads in the UK’s draft Statutory Instrument (SI) ‘The Environmental Protection (Microbeads) (England) Regulation 2017’ (Notification number 2017/353/UK) will create serious issues for the cosmetics industry. The reason is that the suggested definition of plastic microbeads goes beyond similar bans in other jurisdictions such as the United States and Canada, which cover only solid plastic microbeads used for exfoliating or cleansing purposes in rinse‐off cosmetic products. The SI plastic microbeads definition includes in addition ingredients used to control viscosity, appearance of products or stability of products and ingredients. This would lead to a legislation banning many ingredients for which there is no scientific evidence of a contribution to marine litter and consequential risk of harm to the consumer.
These ingredients are necessary in rinse-off cosmetic products as specific problem solvers in many aspects. For meeting consumer acceptance and product performance criteria, these ingredients are imperative to adjust and optimise product viscosity, stability, haptics and optical appearance. Namely, these are synthetic polymers (e.g. swellable, crosslinked Styrene / Acrylate Copolymer) as well as chemically modified polymers based on natural substances (raw materials from renewable sources e.g. based on botanical or mineral starting materials). The ban’s underlying definition of plastic micro beads hence results in the disproportionate inclusion of more than 10 percent of the shampoo, shower gels, foam baths and liquid hand soaps of Henkel’s current product portfolio and would require lengthy and costly reformulation.
Following the draft plastic microbeads definition of DEFRA we would face difficulties due to the need to find multiple alternatives (not readily available today) for covering the broad application range, time requests for formula development, industrial upscaling of unknown formula and additional, not planned cost allocations.
The proposed implementation date of 30th June 2018 would furthermore present a major problem as reformulation and exchange of products in the market would take several years. We would thus have a major challenge to introduce alternative products until end of June 2018. This will be associated with an out-of-stock situation and the NES loss for trade and manufacturer. To comply, Henkel would require an extended time frame for reformulation and market clearance of about 4 years.
We also share the CTPA opinion that the proposed SI draft may not comply with the Treaty on the Functioning of the European Union, specifically, Part Three Union Policies and Internal Actions which ensures the free movement of services (particularly Articles 26, 56 and 57 therein). The extended scope of plastic microbeads will restrict our product portfolio which is freely sold on the common EU market.
Furthermore, the legislation will pose a challenge to international trade. Many of the products sold in the UK contain the same formulations as in countries with another understanding of plastic microbeads such as the U.S. and Canada. It is unclear whether the products currently available for sale to UK consumers could still be part of our portfolio if costs for production increase significantly due to alternative ingredients.
The scope of the legislative ban on plastic microbeads should thus be clearly limited to plastic microbeads (see below) used to cleanse or exfoliate, in line with other international bans and in line with clear and robust scientific evidence. This would ensure that only those ingredients associated with marine litter are within scope.
Definition of plastic microbeads: Any intentionally added, 5 mm or less, water insoluble, solid plastic particle used to exfoliate or cleanse in rinse-off personal care products.
Plastics is understood as synthetic water insoluble polymers that can be repeatedly moulded, extruded or physically manipulated into various solid forms which retain their defined shapes in their intended applications (i.e. use and disposal).
Microplastics are water insoluble solid plastic particles with a size less than 5mm that can be found as marine litter.
This science-based definition for plastics and microplastics is supported by our sector trade associations Cosmetics Europe and A.I.S.E, the International Association for Soaps, Detergents and Maintenance Products, and in alignment with global initiatives. It was developed by the US Personal Care Products Council’s (PCPC) Global Plastic Science Task Force, an international group consisting of leading polymer chemists, environmental scientists and regulatory professionals including experts from Canada and the United States, as well as other associations.
UK Cosmetics Industry Trade Association’s Comments on Notification Number: 2017/353/UK (UK): The Environmental Protection (Microbeads) (England) Regulations 2017
15 September 2017
The Cosmetic, Toiletry and Perfumery Association (CTPA) is the trade association representing the UK cosmetics industry. CTPA has more than 170 members ranging from SMEs to multinational companies, covering over 85% of the UK cosmetics market (by retail price). CTPA members are supplying cosmetic products to European Union consumers, as well as manufacturing for customers all across the EU.
The UK cosmetics industry supports in principle the UK Government’s plan to introduce a legislative ban on plastic microbeads and has already acted voluntarily to remove them from its products where there has been evidence of them contributing to marine litter and a possible risk of harm. However, the definition of plastic microbeads in the UK’s draft Statutory Instrument (SI) ‘The Environmental Protection (Microbeads) (England) Regulation 2017’ (Notification number 2017/353/UK) has expanded the scope of the ban to a much wider range of other ingredients present in a significant number of cosmetic products. The definition is poorly presented and gives rise to legal uncertainty through the incorporation of a non-exclusive list of examples of polymers considered to be plastic. Many of these names relate to ingredients that are not used as plastic microbeads as widely understood. If implemented in its current form, the SI will cause concerns over single market issues and freedom of services as well as leading to barriers to trade.
We understand that DEFRA (the UK Government’s Department for Environment Food & Rural Affairs) has amended the definition of plastic in the SI to remove the polymer names: https://www.gov.uk/government/consultations/banning-the-use-of-microbeads-in-cosmetics-and-personal-care-products
While we welcome the removal of specific polymer names, the updated definition of plastic is not scientifically accurate and there are still concerns over an expanded scope, with no benefit to the marine environment.
There is no scientific evidence to support the need for any ban to go beyond the scope of those articles industry has already volunteered to remove from rinse-off cosmetic products, namely solid plastic microbeads used for cleansing or exfoliating. CTPA is therefore seeking to have the scope of the UK ban, as proposed in the draft SI, brought into line with the scientific evidence and with bans enacted elsewhere in the EU and globally as well as aligning it with the voluntary action industry has already implemented effectively.
In the ‘Brief Statement of Grounds’ (Section 9) on the TRIS notification page for the SI, it states “Some businesses have already taken voluntary actions but others still continue to use microbeads. Engagement with the UK cosmetics industry indicates that more than 72% of major companies will have ceased to sell cosmetic products containing microbeads by 2017. In the cosmetics industry, there are suitable, economically feasible alternatives. Microbeads in cosmetics are therefore an avoidable source of marine pollution that should be minimised in keeping with scientific advice”
It must be noted that this information is only in relation to the voluntary action already taken by the cosmetics industry, that is solid plastic microbeads used for cleansing or exfoliating in rinse-off cosmetic products. The assertions made in the DEFRA statement above do not apply if the scope of the ban is expanded, as per the current draft SI text.
Also the percentage and date are incorrect. CTPA has advised DEFRA that 100% of its member companies, who responded to its survey, will have achieved the voluntary action by the end of 2018, not 2017 as reported by DEFRA.
Points of Concern
Solid, plastic microbeads were added to rinse-off cosmetic products such as cleansers, exfoliating scrubs and toothpastes for cleansing and exfoliating purposes. Some years ago, evidence suggested that these solid, plastic microbeads may be found in the sea and in the bodies of marine creatures. As a responsible industry, the cosmetics sector took the collective decision to stop using plastic microbeads in such products even though the contribution to marine litter has been shown to be minimal (0.29%1). So far, the use of plastic microbeads by CTPA member companies has fallen by more than 80% and they will have been removed from all relevant products in the UK by 2018.
Clear and robust evidence does not exist when it comes to banning ingredients other than solid, plastic microbeads used for cleansing or exfoliating purposes in rinse-off cosmetic products. Most importantly, DEFRA in the UK has failed to demonstrate that the ingredients and products brought within the wider scope contribute any risk of harm to the marine environment.
CTPA has supported in principle a ban on plastic microbeads used for exfoliating or cleansing purposes in rinse-off cosmetic products even though earlier assertions regarding their risks now appear to have been overstated. For example, recent studies have shown that the majority of plastic microbeads from cosmetics are captured by waste water treatment plant processes2,3,4. In addition, the hypothesis that plastic microbeads from cosmetics could act as vectors for toxicity through accumulation in the food chain now appears to be unlikely since organic pollutants have been shown to bind tightly to all forms of microplastic including plastic microbeads from cosmetics and are thus rendered non-bioavailable, or essentially harmless5,6.
Such new evidence casts increasing doubt upon the hypothesis that any plastic microbeads from cosmetic products reach the marine environment and cause harm. There is certainly no evidence to justify a ban that is far broader in scope than one covering solid plastic microbeads used for cleansing or exfoliating in rinse-off cosmetic products. In the absence of such sound scientific evidence of any benefit to the marine environment, the costs to industry and impact on consumers cannot be justified.
The ban will include ingredients that are not associated with marine litter and will not only prohibit the supply of products containing such ingredients but also the manufacture of those products. The scope of the ban in the draft SI is broader than that in any other jurisdiction in any other country without justification.
1. The scope of the ban includes ingredients that are not associated with marine litter
The draft SI states: “Microbead” means any water-insoluble solid plastic particle of less than or equal to 5mm in any dimension.
Other bans or proposed bans in EU Member States (e.g. France, Italy and Sweden) and other global markets (e.g. USA, Canada, Taiwan) have only included those articles or products which might contribute to marine litter, namely solid plastic microbeads in rinse-off cosmetic products, used for exfoliating or cleansing purposes. By failing to restrict the ban to these articles, the UK ban will cover many ingredients for which there is no scientific evidence of a contribution to marine litter and consequential risk of harm. For example, certain ingredients used to control the viscosity and appearance of products or the stability of particular ingredients will be included within the scope. Such ingredients are not plastic microbeads as generally understood but are captured by the definition used in the UK’s SI. This action will require reformulation of products including, but not limited to, shampoo, conditioner, shower gel, shaving gel, shaving foam, bubble bath and liquid hand wash with no benefit to the marine environment.
Unless this is rectified, the extension of the ingredients covered will lead to significant costs to industry and reduced product availability for consumers. Very few rinse-off cosmetic products would be unaffected. Some CTPA members have estimated that over 90% of their rinse-off products would require reformulation, which can take up to four years. For some of these products, reformulation would be impossible and these products would have to be withdrawn from sale permanently.
The scope of the ban should therefore be clearly limited to plastic microbeads used to cleanse or exfoliate, in line with the majority of EU and international bans and in line with clear and robust scientific evidence and industry’s own voluntary action. This would ensure that only those ingredients associated with marine litter are within scope for prohibition and that rinse-off cosmetic products legally allowed for sale in other EU Member States and for which robust scientific evidence of harm has not been shown will remain available in the UK as well.
2. The scope includes a ban on supply which will affect the free movement of goods
By expanding the scope in the UK, some rinse-off cosmetic products which are legally placed on the single market of the EU and circulating freely will be prohibited from the UK market. Such goods would therefore be excluded from the EU principle of free movement of goods. This decision, if allowed to go ahead, will have unnecessary economic and logistic consequences on companies without having any beneficial impact on the environment being shown as justification.
In order to avoid such barriers, CTPA proposes that the following definition should be adopted in place of that in the draft SI: “Microbead” means any water-insoluble solid plastic particle of less than or equal to 5mm in any dimension used for cleansing or exfoliating purposes.
3. The scope includes a ban on manufacture that would prevent the UK industry from providing a service to EU customers
The draft SI proposes to ban the manufacture - not just the sale, as with many other bans - of prohibited rinse-off cosmetic products. This means that UK manufacturing companies will not be able to manufacture those products that could be legally placed on the rest of the EU market. This will harm the many companies which manufacture in the UK for supplying other EU Member States, as well as globally.
CTPA believes such a restriction may not comply with the Treaty on the Functioning of the European Union, specifically Part Three Union Policies and Internal Actions which ensures the free movement of services (particularly Articles 26, 56 and 57 therein). A ban on the manufacture of products that are legal in the rest of the EU would prevent the UK industry from providing a service to customers from the other EU Member States.
CTPA is seeking to have the ban on manufacture deleted and replaced by dates after which prohibited cosmetic products should not be placed on the market and should not be supplied to the final consumer. Such an approach would be consistent with all previous restrictions on cosmetic products within the EU, including those in the Cosmetic Products Regulation (EC) No 1223/2009, none of which has involved a prohibition on manufacture. CTPA believes prohibiting manufacture, without sufficient justification, does not comply with EU treaties.
4. The implementation time will cause business disruption
The UK Government is proposing to prohibit the manufacture of cosmetic products falling within its broad scope for a ban (which goes beyond the effective voluntary action already taken by industry) from 1st January 2018 and to prohibit any supply of cosmetic products within the broad scope of the ban from 30th June 2018. This provides insufficient time for companies marketing products compliant with the voluntary action, to investigate and amend their supply and distribution networks for products caught by the expanded scope of the current UK SI. Such products are freely circulated throughout the remainder of the single EU market, but would be unable to reach the UK as they would be deemed illegal and companies laid open to prosecution. Companies will not have had prior experience of attempting to restrict distribution in such a way but will have their networks established to comply with the principle of a single market that guarantees the free circulation of goods and services throughout the European Union.
CTPA believes the draft Statutory Instrument introducing a ban on plastic microbeads in the UK has failed to justify the need for the scope to be broader than the effective voluntary action industry has already taken. For those additional products now unexpectedly caught, CTPA believes the ban may contravene the principles of free circulation of goods in the single market and provision of services across the Union. CTPA is seeking to have the proposed SI amended significantly.
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