Notification Detail

The Environmental Protection (Microbeads) (England) Regulations 2017

Notification Number: 2017/353/UK (United Kingdom)
Date received: 28/07/2017
End of Standstill: 30/10/2017

Issue of comments by: Commission
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Message 001

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.

(MSG: 201701983.EN)

1. Structured Information Line
MSG 001 IND 2017 0353 UK EN 28-07-2017 UK NOTIF


2. Member State
UK


3. Department Responsible
Department for Business, Energy and Industrial Strategy
Europe Directorate
1 Victoria Street
London, SW1H 0ET

Email: technicalregulations@beis.gov.uk


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

Email: [***]


4. Notification Number
2017/0353/UK - S00E


5. Title
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
No


12. Grounds for the Emergency
-


13. Confidentiality
No


14. Fiscal measures
No


15. Impact assessment
Yes


16. TBT and SPS aspects
TBT aspect

Yes

SPS aspect

No - The draft is not a sanitary or phytosanitary measure



**********
European Commission

Contact point Directive (EU) 2015/1535
Fax: +32 229 98043
email: grow-dir2015-1535-central@ec.europa.eu

Stakeholders Contributions

The TRIS website makes it easy for you or your organization to contribute with your opinion on any given notification.
Due to the end of standstill we are currently not accepting any further contributions for this notification via the website.


en
  ClientEarth on 30-10-2017
Click to expand

 

 

 

Response to the UK Government Notification 2017/353/UK: The Environmental Protection (Microbeads) (England) Regulations 2017

 

Introduction

 

ClientEarth welcomes the UK Government’s decision to ban the manufacture and sale of cosmetic and personal care products containing microbeads.[1] The use of microplastics in products designed to be washed down the drain poses a serious threat to marine life and represents one of the most easily preventable sources of microplastic pollution entering UK seas.

 

As you will already be aware, a report this year to the European Commission estimated that, in Europe, microplastics in personal care and cosmetic products could be adding up to 8,627 tonnes of plastic per year to the marine environment. [2] Further, recent data has shown that microplastics are not captured by wastewater treatment processes and enter the aquatic environment at rates of up to 550 million microplastic particles per day in the UK.[3]

 

Once in the aquatic environment, microplastics can be ingested by species throughout the food chain.  There is scientific evidence of serious adverse effects resulting from the ingestion of microplastics in a range of marine and freshwater species, including species that are important in commercial fisheries and perform vital ecosystem functions.  The potential human health risks are an emerging concern but are not yet well understood.

 

In this response to the UK Government’s notification, we comment on the version of the proposed legislation as made available on the UK Government’s website, [4] as we understand this to be the most up-to-date version, and address concerns raised by industry representatives in other published responses to the notification.

 

Definition of ‘microbead’

 

We are pleased to see that the Government has not restricted the ban to microplastic ingredients added to products to perform a specific purpose, e.g. exfoliation and cleansing – in contrast with bans existing in other states, such as the U.S. This is because, once in the marine environment, all microplastics have the same potential to cause harm, regardless of their source or the function they perform in a product. This is clearly demonstrated by scientific evidence. For example, a recent study by Tanaka & Takada (2016) sets out clear evidence of fish ingesting microbeads, or microplastic ingredients, made from a wide range of plastic types, including copolymers. In addition, when the U.S. microbeads ban was implemented, a group of more than 40 scientists submitted research from Dr. Heather Leslie published in 2014 and 2015, which demonstrated the existence of polluting microplastic particles in the ocean environment.[5] These particles were shown to originate from personal care and cosmetic products and were designed to perform a range of functions, not just exfoliation and cleansing. The decision to ban all forms of microplastics in cosmetics and personal care products is therefore clearly justified by robust scientific evidence.

 

Statements made by industry in responses to the UK Government’s notification that the scope of the UK ban will require them to reformulate over 90% of their rinse-off products simply serve to highlight the scale of this problem and only go further to justify this much-needed ban. A wide range of natural, sustainable alternatives to microplastic ingredients designed to perform a wide range of functions in products is available. The scope of the ban is therefore proportionate in terms of both the pollution problem and the availability of solutions for industry to overcome this.

 

We do however remain concerned that the definition of ‘microbead’ should be clarified to ensure that both solid and semi-solid plastic particles are in scope of the legislation. There are many types of synthetic waxes - for example, polyethylene waxes - used in personal care products as solid or semi-solid compounds. Although softer, these compounds may still retain their shape and persist in the marine environment as marine litter. Although the industry does not always consider these to be classed as ‘microbeads’, scientists confirm that polyethylene waxes fall under the definition of marine microplastic litter as they are non-degradable, water insoluble and are solid materials with a melting point well above sea temperatures. Therefore, there is a risk that by not including semi-solids, there will still be products on the market after the ban is implemented that pose a similar threat to the marine environment as those that have been prohibited.

 

Definition of ‘plastic’

 

The more up-to-date version of this Statutory Instrument available on the UK Government’s website removes the example list of synthetic polymers from the definition of ‘plastic’.[6] We support this move, as providing a list of examples could cause confusion and be misinterpreted as exhaustive.

 

We are also encouraged to see that the UK Government has chosen not to restrict the ban to a specific list of microplastic ingredients or to a subset of ingredients used for a specific function. This will help to prevent manufacturers from seeking to exploit loopholes in the law by replacing common microplastic ingredients with alternatives that nonetheless would still become microplastic litter and have negative environmental impacts.

 

We do not support the proposed definition of plastic submitted by Henkel in its response to the UK Government’s notification, which suggests that plastics are solids that retain their defined shapes in their intended applications. As already referred to above, both solid and semi-solid plastic particles have the same ability to contribute to marine litter. In addition, plastics can and do have the ability to fragment into smaller pieces once in the marine environment, meaning that they may not always retain their original shapes.[7]

 

However, we remain concerned about the following elements of the definitions of 'plastic' and 'synthetic' as currently drafted:

 

a.       Plastic definition: Plastic is a loose term that can be used to describe a range of polymeric substances. For example, 'plastic' could describe:

 

                                                   i.      man-made synthetic polymers derived from petrochemicals;

 

                                                 ii.      semi-synthetic polymers,[8] which are derived from naturally occurring polymers by chemical modifications; and/or

 

                                               iii.      combinations of synthetic and natural polymers, which have been documented as new types of plastics in existing patents;[9] and/or 

 

                                               iv.      so-called 'biodegradable' plastics, which have not been proven to fully biodegrade in real-world marine environmental conditions or be harmless to marine life; and/or

 

                                                 v.      combinations of polymers (natural, semi-synthetic or synthetic) chemically modified via processes, including but not limited to polymerisation, substitution or co- and cross-polymerisation.

 

 

 

For the purposes of this legislation, plastics made from any of the above should be considered to have the same negative environmental impacts as those plastics derived from petrochemicals. This broad definition of 'synthetic' should be incorporated into the legislation, because none of the plastic categories above have been shown to break down naturally in the environment.

 

Scope of legislation

 

We remain concerned that the ban set out by the draft legislation is limited to microplastics in ‘rinse-off’ products. This is a significant shortcoming, because it means that the ban would not apply to other products such as make-up which are often considered ‘leave-on’, but which in practice often go down the drain and are known to contain microplastic ingredients commonly used in solid, water-insoluble form.[10] Indeed, polling undertaken by YouGov found that many products that would be classified as ‘leave-on’ under the EU Cosmetics Regulation are in fact routinely washed down the drain by the general public.[11] For example, 60% of people who use ‘leave-on’ products such as sun lotion or moisturiser wash this off directly down the drain, and 45% of people who use face, lip or eye make-up either wash this off directly down the drain or dispose of any tissues or wipes they use down the toilet. There is published evidence[12] [13] [14] [15] [16] [17] showing that some of the common microplastic ingredients (that are often used in solid water-insoluble form), such as nylon, polyethylene and PET, are known to be used in solid (powder or flake) form in a range of ‘leave-on’ products, such as skincare creams, make-up foundation, face powders and eyeshadows. There is therefore clear evidence that there are ‘leave-on’ products with microplastic ingredients that are in fact making their way to drainage in significant quantities, either by design or reasonably foreseeable use and it is disappointing that the draft legislation does not address this issue.

 

Additionally, microplastic ingredients may be used in domestic and industrial cleaning products and detergents. Although the UK Cleaning Product Industry has stated that it does not use microplastic ingredients in any products, this is not the case for products produced by non-UK manufacturers, and potentially placed on the UK market. A preliminary online review of published ingredient lists for domestic and industrial cleaning products and industrial hand cleaners available in the UK conducted by FFI and Greenpeace UK in 2016 found names of known microplastic ingredients and unverified polymeric ingredients in a number of products.[18]

 

We therefore welcome the commitment of the UK Government to working with the Hazardous Substances Advisory Committee (HSAC) to assess the case for extending the ban to further categories of products.

 

Free movement of goods and services

 

In their responses to this consultation, industry representatives have suggested that the legislation may breach aspects of European Union law regarding the free movement of goods and/or services. In particular, both Henkel and the UK Cosmetics Industry Trade Association, represented by the Cosmetic, Toiletry and Perfumery Association, argue that the legislation could breach Articles 26 (internal market), 56 (freedom to provide services) and 57 (principle of non-discrimination) of the Treaty on the Functioning of the European Union (TFEU).

 

ClientEarth disputes the relevance of Articles 56 and 57 TFEU in this context. The proposed ban on the manufacture and sale of cosmetics and personal care products containing microplastic ingredients clearly pertains to the free movement of goods within the European Union, rather than the free movement of services. In this context, Article 34 TFEU (quantitative restrictions) concerning the free movement of goods, is instead engaged.

 

Article 34 prohibits the imposition of quantitative restrictions in imports and all measures having equivalent effect between Member States. However, it is clear that this legislation is not in breach of Article 34 TFEU. Article 36 TFEU sets out a list of circumstances in which the provisions of Article 34 will not apply. This includes restrictions on imports, exports or goods in transit justified on grounds of the protection of health and life of humans, animals or plants. There is clear, robust and widely available scientific evidence about the negative impacts of microplastic ingredients on marine life, some of which we have set out in this consultation response. However, even if this robust evidence were not available, there is sufficient doubt about the negative impacts of microplastics on human health to justify the ban alone, on the grounds of the precautionary principle. See for example the Court of Justice case National Farmers’ Union and Others[19] concerning the movement of animals and products, in which the Court stated where there is uncertainty as to the existence or extent of rights to human health, the institution may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent”.[20] Further, the Court has generally been content with finding scientific uncertainty is at hand, and to then leave Member States considerable leeway in deciding on what measures to take.[21]

 

In addition, it is clear that the proposed ban does not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States, which would be contrary to Article 36 TFEU. The UK Government’s agenda in introducing this ban is not protectionist, but is clearly designed to avoid marine pollution through the use of microplastic ingredients in cosmetics and personal care products. The only way to achieve this is through a ban on the manufacture and sale of such products, where they contain those ingredients. The ban is therefore proportionate and clearly justified on environmental, rather than protectionist, grounds.

 

In the unlikely event that the European Court of Justice were to view this matter as also or partially relating to the free movement of services, the same human, animal and plant justification exception in any event applies to the free movement of services, being firmly established by case law.[22]

 

 

 

Conclusion

 

In summary, we welcome the proposed ban on microplastic ingredients in cosmetics and personal care products.

 

We do not accept the objections raised by industry either in relation to the scope of the legislation or its interaction with trade rules.

 

We do believe that our own concerns set out above about the current definitions of ‘microbead’ and ‘plastic’ must be addressed in order to achieve a watertight definition and avoid confusion for operators. If these points are not addressed, loopholes will remain for operators seeking to develop alternatives that may still be environmentally damaging. In addition, this would leave room for inconsistencies between how different operators interpret the legislation, creating an unfair competitive advantage for those companies seeking to exploit the weaknesses in the current definitions.

 

We also maintain that this legislation should be used as a starting point from which to eventually ban the use of microplastic ingredients in all products that contain water-insoluble microplastic ingredients that have the potential to be washed down the drain or discharged directly or indirectly into waterways or the marine environment, either by design or user behaviour.

 

 

 

 

 



[1] As defined by the draft legislation, i.e. any water-insoluble microplastic ingredients.

[2] Sherrington, C., Darrah, C., Hann, S., Cole, G. & Corbin, M. 2016. Study to support the development of measures to combat a range of marine litter sources. Report for European Commission DG Environment. 432

[3] Personal communications with Thomas Maes of the Centre for the Environment, Fisheries and Aquaculture Services have revealed that preliminary data on microplastic sampling downstream of UK wastewater treatment facilities show that the maximum retention rate of microplastic in the UK is 80%; Environmental Audit Committee (2016). Oral Evidence: Environmental Impact of Microplastics, HC 179 Tuesday 24 May 2016. http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-committee/environmental-impact-of-microplastics/oral/33831.pdf

[4] https://www.gov.uk/government/consultations/banning-the-use-of-microbeads-in-cosmetics-and-personal-care-products

[5] Rochman, C. et al. (2015) Scientific evidence supports a ban on microbeads. Society for Conservation Biology. Available at: https://conbio.org/images/content_policy/03.24.15_Microbead_Brief_Statement.pdf

[6] https://www.gov.uk/government/consultations/banning-the-use-of-microbeads-in-cosmetics-and-personal-care-products

[7] Rochman, C. et al. (2015) Scientific evidence supports a ban on microbeads. Society for Conservation Biology. Available at: https://conbio.org/images/content_policy/03.24.15_Microbead_Brief_Statement.pdf

[8] http://www.legislation.gov.uk/ukdsi/2015/9780111125397/pdfs/ukdsi_9780111125397_en.pdf  

[9] http://www.google.sr/patents/US5346929  

[10] House of Commons Briefing Paper - Microbeads and microplastics in cosmetic and personal care products 4 January 2017.

[11] http://www.greenpeace.org.uk/sites/files/gpuk/YouGov%20polling.pptx

[12] Blaustein, M. (1965). U.S. Patent No. 3,196,079. Washington, DC: U.S. Patent and Trademark Office.

[13] Sherrington, C., Darrah, C., Hann, S., Cole, G. and Corbin, M. (2016). Study to support the development of measures to combat a range of marine litter sources. Report for European Commission DG Environment. Eunomia Research & Consulting Ltd, Bristol.

[14] Cosmetic Ingredient Review (2012). Safety Assessment of Modified Terephthalate Polymers as Used in Cosmetics. http://www.cirsafety.org/sites/default/files/ModTer_122012_Tent_faa_final%20for%20posting.pdf

[15] Cosmetic Ingredient Review (2012). Safety Assessment of Nylon as Used in Cosmetics. www.cirsafety.

org/sites/default/files/nylon122012tent_faa_final%20for%20posting.pdf

[16] Cosmetic Products Notification Portal (2013). Article 13 user manual.

http://ec.europa.eu/consumers/sectors/cosmetics/files/pdf/cpnp_user_manual_en.pdf

[17] Leslie, H. A. (2015). Plastic in Cosmetics, Are we polluting the environment through our personal care?. United Nations Environment

Programme (UNEP), 2015. Report for the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities

(GPA).

[18] Summaries of microplastic ingredient data from FFI’s UK product database can be found online: FFI (2017). Microbeads Guidance Document, Appendix 3, Appendix 4. Available at: http://www.fauna-flora.org/wp-content/uploads/FFI-Microbeads-Guidance-Document-Appendix-3-January-2017.pdf

And http://www.fauna-flora.org/wp-content/uploads/FFI-Microbeads-Guidance-Document-Appendix-4-January-2017.pdf 

[19] Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211.

[20] Ibid., para. 63.

[21] Cf. Case C-132/03 Codacons and Federconsumatori [2005] ECR I-4167, paragraph 61, and Case C-236/01 Monsanto Agricoltura Italie and Others [2003] ECR I-8105, paragraph 111.

[22] See for example Case C-17/00 De Coster [2001] ECR I-9445 §35, 37, 38.

 


en
  On behalf of the UK Microbead Coalition on 30-10-2017
Click to expand

30 October 2017

 

UK Microbead Coalition's Response to the UK Government Notification 2017/353/UK: The Environmental Protection (Microbeads) (England) Regulations 2017

 

Introduction

The UK Microbeads Coalition, which is made up by the Environmental Investigation Agency (EIA), Fauna & Flora International (FFI), Greenpeace UK and the Marine Conservation Society (MCS), welcomes the notification by the UK Government (Notification 2017/353/UK) of The Environmental Protection (Microbeads) (England) Regulations 2017. We congratulate the UK on its leadership in proposing a ban on microplastic ingredients in cosmetics and personal care products which is, to date, world-leading in its ambition to effectively protect the environment.

The use of microplastics in products designed to be washed down the drain poses a serious threat to marine life and represents one of the most easily preventable sources of microplastic pollution entering UK seas. Our four organisations have been working together towards a world free from marine and freshwater plastic pollution. Based on our extensive technical expertise on this issue, we fully support a comprehensive legal ban on the use of all microplastics used as ingredients in products entering drainage systems or discharged directly or indirectly into the aquatic environment, either by design or reasonably foreseeable use.[1]

There is robust and extensive evidence of environmental harm demonstrating that a comprehensive microbeads ban is justified and urgently needed. A 2016 report to the European Commission estimated that in Europe, microplastics in personal care and cosmetic products could be adding up to 8,627 tonnes of plastic per year to the marine environment, contributing 3.2-4.1% of marine microplastic pollution from primary sources.[2] It is important to note that one tonne of microplastic is made up of billions of individual plastic particles which can be ingested by a wide range of animals and become embedded in all marine habitats. All types of microplastics are known to pass through wastewater treatment and enter waterways and oceans at rates of up to 550 million microplastic particles per day in the UK.[3] Preliminary data on microplastic sampling downstream of UK wastewater treatment facilities show that the maximum retention rate of microplastic in the UK is 80%.[4]

Microplastics are known to be eaten by a wide range of marine and freshwater species throughout the food chain, including over 50 marine species,[5] many of which are known to perform vital ecosystem functions and are important in commercial fisheries. Microplastic ingredients from cosmetic products specifically have also been found in the digestive tracts of fish caught in coastal environments.[6]  Serious adverse impacts of microplastic ingestion have been demonstrated by peer-reviewed research and include, but are not limited to, mortality, internal injuries, starvation, reduced growth and sub-optimal feeding and breeding behaviour.[7]

Microplastics have been proven to adsorb, release, and transfer persistent, bioaccumulating toxins and background environmental contaminants to those organisms that ingest them, which allows toxins to be transferred up the food chain.[8] Recent peer-reviewed research has demonstrated that chemical pollutants sorbed to ingested microplastic ingredients from personal care products accumulate in fish.[9] Additives within plastics constitute an additional source of chemical pollution, with microplastic ingestion also leading to increased bioaccumulation of plastic additives.[10] Such chemicals associated with plastics can accumulate in animals that ingest them and cause liver toxicity and disrupt the endocrine system.[11] Though the risks are not yet fully understood, there are also emerging human health concerns regarding microplastics.[12],[13]

Our organisations believe that in order to be effective and fit for the purpose of protecting the environment, a comprehensive ban on microbead use should meet the following criteria:

        The ban should apply to all microplastic ingredients, which should be defined as all solid water-insoluble microplastic ingredients of 5mm or less in any dimension used for any purpose. There should be no lower size limit included in the definition, and it should cover all plastics rather than a list of specifically prohibited plastics or specific ingredients used for a particular function;

        The legislation should cover all products that contain microplastic ingredients which meet the above definition at the point of disposal and that are washed down the drain or discharged into the aquatic environment, either through design or reasonably foreseeable use;[14]

        Legislation should not allow any exemption for ‘biodegradable’ plastics, as there are none that have been conclusively demonstrated to fully biodegrade in real-world marine environmental conditions or to be harmless to marine life;[15]

        There should be a clear and prompt timeline for phasing out these ingredients, and a date after which products containing microplastics must not be sold.

 

In summary, we welcome the UK’s leadership in proposing a ban on microplastic ingredients in cosmetics and personal care products which is, to date, world-leading in ambition.  We are also delighted that the UK Government decided to review other forms of microplastic ingredient use, and risks to the marine environment. With this in mind we wish to highlight the potential risk from microplastic ingredients within ‘leave-on’ cosmetic and personal care products and cleaning products,  which can also be washed down the drain or discharged directly into the aquatic environment, either through design or reasonably foreseeable use.

We welcome the commitment of the UK Government to working with the Hazardous Substances Advisory Committee (HSAC) to assess the case for extending the ban to further categories of products[16] and strongly encourage industry to help with this process and be transparent about the ingredients that they are using.

In the submission below we detail our response to the scope and impacts on trade of the proposed legislation, based on the Statutory Instrument in the UK Government Notification 2017/353/UK: The Environmental Protection (Microbeads) (England) Regulations 2017,[17] and address concerns raised in other published submissions by industry representatives.

 

  1. Scope of the ban

 

1.1 Definition of microbead

The draft Statutory Instrument proposes the use of the following definition of ‘microbead’ in the legislation:

“Microbead means any water-insoluble solid plastic particle of less than or equal to 5mm in any dimension.”

We welcome that the proposed definition does not include a lower size limit and welcome the minor change in language which now clarifies that all water insoluble plastic ingredients measuring less than 5mm in any dimension will be covered in the proposed Statutory Instrument.

We particularly welcome that, as outlined in the original UK consultation on the scope of the ban in December 2016,[18] the proposed legislation does not limit the definition of microbead by function i.e. for exfoliating and cleansing purposes - a loophole that has weakened many other existing bans elsewhere in the world. Such weakening of the ban, as recommended in the recently published industry statements,[19] would prevent effective, robust environmental legislation and would allow damaging microplastics to continue flowing into our seas. This is clearly confirmed by company statements revealing the avoidable use of non-exfoliating plastic particles simply for aesthetic purposes in bath products that are meant to be washed off down the drain.[20] Pollution is pollution, regardless of the role a microplastic ingredient plays within a product - what is important to consider is whether ingredients become plastic pollution after product use and not whether they fit what some industry representatives call a “widely understood” definition of microbeads which does not take into account the environmental fate and impact of ingredients. We therefore object to the idea of limiting the microbeads ban to include only exfoliating ingredients and urge the UK Government to continue to show leadership on this environmental pollution issue.

Scientific evidence indicates that any plastic particles that reach the aquatic environment can become plastic pollution, regardless of their source or of what functions these particles may have in products. A recent study by Tanaka & Takada (2016) not only provides the first evidence of the ingestion of microplastic ingredients, suspected of being derived from personal care products, by fish in the environment, but also demonstrates that a wider range of plastic types, including copolymers, are being ingested and detected in wild fish.[21] Research on microplastic use in cosmetics by Dr. Heather Leslie published in 2014 and 2015, in advance of Cosmetics Europe’s limited microbeads phase-out recommendation,[22] has also demonstrated that polluting plastic particles from cosmetic and personal care products that can become marine plastic pollution are not used solely for exfoliating and cleansing purposes.[23]  This was also detailed in a policy briefing note regarding the U.S. microbead ban signed by over 40 scientists in 2015 [24] and confirmed by Cosmetic Ingredient Review data published in 2012.[25]

Statements by industry that the scope of the UK ban will require them to reformulate over 90% of their rinse-off products[26] give rise to serious concerns regarding the wide extent of microplastic use for functions other than exfoliating in rinse-off products directly washed off into drainage and the contribution of such products to microplastic pollution. Although  industry has stated that reformulation of non-exfoliation rinse-off products containing microbeads (as defined in the draft Statutory Instrument) can take up to four years, this is called into question by the prompt reformulation already undertaken by a number of UK companies. This is evidenced by progressive voluntary action by a number of  UK businesses which has already extended to removing all microplastic ingredients, not only exfoliating and cleansing plastic particles - such action is clearly demonstrated by the public voluntary commitments of companies such as PZ Cussons, The Co-Op, Sainsbury’s, Waitrose and Wilko for example[27] and in the recent statement prepared by Neal’s Yard Remedies, the renowned natural beauty company, in support of the proposed ban:

At Neal’s Yard Remedies we have never used microplastic ingredients for any function in any of our products, and never will - we don’t use them in our face, body or foot scrubs but also not in our deodorants, bath products, mascaras or anything else.

We feel that the quality of our products and ability to sell high quality consumer products does not suffer due to this absence and see no product category where microbead use is unavoidable – far from it, there is a plentiful array of highly effective natural sustainable options that have a hugely reduced impact on the environment and ocean in particular. We have also found many of our customers are reassured that they are not contributing to the growing problem of microplastic pollution when using our products.

We believe that microplastic beads and particles should never be used in personal care products. A ban against microbeads has been campaigned towards for several years with the legislation on rinse-off products in the works for many months, we believe the legislation presented is in line with the proposals and that any company must take accountability for implementing a precautionary principle to what ingredients they use based on current evidence. Given this we see no reason why any company should have the right to continue selling or manufacturing microbead containing products into 2018.

Neal’s Yard Remedies, 2017

We would also urge the UK Government to provide additional clarification that the term solid in the proposed definition of microbead also covers semi-solid plastic particles. There are many types of synthetic waxes - for example, polyethylene waxes - used in personal care products as solid or semi-solid compounds. Although softer, these compounds may still retain their shape and persist in the marine environment as marine litter.[28] Although the industry does not always consider these to be classed as microbeads, scientists confirm that polyethylene waxes fall under the definition of marine microplastic litter as they are non-degradable, water insoluble and are solid materials with a melting point well above sea temperatures.[29] Therefore, there is a risk that by not including semi-solids, there will still be products on the market after the ban is implemented that pose a similar if not identical threat to the marine environment as those that have been prohibited.

 

1.2 Definition of plastic

The draft Statutory Instrument proposes the use of the following definition of ‘plastic’ in the legislation:

“Plastic means a synthetic polymeric substance made from polyethylene, polypropylene, polyvinyl chloride, polystyrene, polyurethane, polyethylene terephthalate or other similar synthetic polymer, or any combination of those or similar synthetic polymers.”

We urge the UK Government to align the plastic definition in the draft Statutory Instrument published on the European Commission website with the improved definition in the draft Statutory Instrument subsequently published in the London Gazette[30] by removing the list of example synthetic polymers. We would encourage the UK Government not to introduce such lists of example polymers that may be misinterpreted as exhaustive.

Plastic is a loose term that can be used to describe a range of polymeric substances. Legislating against a set list of synthetic polymers will create the opportunity to replace ‘like with like’. It is widely understood that ‘plastics’ are not one single material or a small set of well-known materials. The industry itself states that “the plastics” family is composed of a great variety of materials designed to meet the very different needs of thousands of end products. As products evolve, so do plastic materials, so many of them are still to come.”[31]

We do not support the proposed definition of plastic submitted by Henkel, which is as follows:[32]

“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).” 

Limiting the scope of the ban to materials that retain their defined shapes could create an important loophole which allows the use of plastics that degrade slightly in an unspecified time period. All microplastics can become marine plastic pollution if used as ingredients in products that go down the drain. Contrary to industry claims, the definition proposed by Henkel and supported by Cosmetics Europe is not supported by scientists for use in the context of legislation on microplastic pollution due to the major legislative loophole associated with plastic retaining its shape.  This is highlighted in a public position statement supported by over 40 scientists and published by the Society for Conservation Biology in 2015[33] in which they identify this as providing a loophole, stating that “Defining plastic as those molded at high heat, linking monomers, and retaining their defined shapes after disposal, allows for plastics that degrade slightly in an unspecified time period.” 

The definition proposed by Henkel may provide an additional loophole, because, as highlighted in Section 1.1 above, there are many types of synthetic waxes used in personal care products as solid or semi-solid compounds that can become plastic litter even if they do not retain their defined shapes during use and disposal.[34] Although the industry does not always consider these to be classed as microbeads, scientists confirm that polyethylene waxes fall under the definition of marine microplastic litter as they are non-degradable, water insoluble and are solid materials with a melting point well above sea temperatures.[35]

As detailed in our letter to the Secretary of State dated 13 October 2017, we urge the UK Government to adopt a broad definition of plastic that clarifies the definition in the draft Statutory Instrument published by the Government in the London Gazette and that considers the environmental fate and impact of the polymer, not its origin or the process by which it is produced.

 

1.3 Definition of rinse-off

While we appreciate that the draft legislation does seek to carefully define the term ‘rinse-off’, we remain concerned that the definition centres on how long a product might stay on the skin rather than the likelihood of the product going down the drain and reaching the marine environment. We are also concerned that the term ‘rinse-off’ can be interpreted in different ways  which will introduce a number of grey areas in terms of whether certain products are rinse-off or leave-on[36] and will add significant confusion for consumers, industry and regulators alike. It is important to note that the distinction between ‘rinse-off’ and ‘leave-on’ cosmetics, as outlined in the EU Cosmetics Regulation, has been made with safety concerns in mind, in order to restrict the use of certain substances that should not come into prolonged contact with the skin. It is not concerned with whether or not a product will eventually reach drainage or be discharged directly or indirectly into the aquatic environment.  Microplastic ingredients are used in ‘leave-on’ products such as lotions, sunscreens, make-ups and deodorants, with recent research estimating that between "3,800 and 7,500 tonnes of microplastic" might be used each year in Europe in these products.[37] Polling undertaken by YouGov found that in practice, many products that would be classified as ‘leave on’ under the Cosmetics Regulation are in fact routinely washed down the drain by the general public (see section 1.4. below).[38]

We therefore welcome the commitment of the UK Government to working with the Hazardous Substances Advisory Committee (HSAC) to assess the case for extending the ban to further categories of products[39] and strongly encourage industry to help with this process and be transparent about the ingredients that they are using.

 

1.4 Products that currently fall outside the scope of the ban

The UK legislation will not cover all products that contain microplastic ingredients, as it excludes product types beyond rinse-off cosmetics and personal care products. Any product containing microplastic ingredients that may potentially be disposed of down a drain or reach the aquatic environment (either by design or reasonably foreseeable use) poses an environmental risk and should be covered by the ban.

‘Leave-on’ cosmetic and personal care products

Published evidence has demonstrated the use of polyethylene terephthalate (PET) in powder or flake form or as solid glitter in make-up products such as eyeshadow, face powders, eyeshadows, body lotions and also lipsticks.[40] There is also evidence showing common use of nylon in powder form in both ‘leave-on’ and ‘rinse-off’ cosmetic products.[41]  In a preliminary survey[42] of ingredient lists published online, FFI has also sampled 70 make-up products across 10 make-up categories, including eyeshadow, foundation and lipstick, and found known microplastic ingredient names in all sampled types of make-up.

Contrary to industry statements which suggest that only microplastic ingredients used in ‘rinse-off’ cleansing and exfoliating products have been associated with marine litter, polling indicates that other products (e.g., make-up, skin care products) that can contain microplastic ingredients are frequently disposed of into drainage, and are therefore likely to be entering the marine environment in significant quantities. As the proposed legislation stands, it will be prohibited to include microplastic ingredients in wash-off make-up remover that is designed to allow make-ups that can contain microplastics to be washed off ‘down the drain’, a counterproductive approach that fails to take into account the environmental fate of all relevant product types. A recent research report indicated that the use of microplastics in some leave-on products may be "ubiquitous", and estimated that between "3,800 and 7,500 tonnes of microplastic" might be used each year in Europe in these products.[43]

Polling undertaken by YouGov[44] found that in practice, many products that would be classified as ‘leave on’ under the Cosmetics Regulation are in fact routinely washed down the drain by the general public:

● 60% of people who use ‘leave-on’ products such as sun lotion or moisturiser wash this off directly down the drain;

● 45% of people who use face, lip, or eye make-up either wash this off directly down the drain or dispose of any tissues or wipes they use down the toilet;

It is clear that there are examples of ‘leave-on’ products and their microplastic ingredients that are in fact making their way to drainage in significant quantities, either by design or reasonably foreseeable use.

Cleaning products and detergents

With regards to the use of microplastics in cleaning products, although the UK Cleaning Product Industry states that it does not use microplastic ingredients in any products, this is not the case for products produced by non-UK manufacturers, and potentially placed on the UK market.  At a recent EU Commission event in Brussels, delegates from the international trade association for soaps, detergents, and maintenance products (AISE) stated that a survey amongst members revealed 140 tonnes of microplastic ingredients were being added to products in the EU each year. A number of these companies have made voluntary commitments to remove these ingredients according to AISE but it is unclear as to what ingredients will be covered by the commitment or what proportion of products placed on the market are covered by such voluntary commitments.

A preliminary online review of published ingredient lists for domestic and industrial cleaning products and industrial hand cleaners available in the UK was conducted by FFI and Greenpeace UK in 2016.[45] Of 50 products spanning 10 product categories available on the UK market, research highlighted:

● Names of known microplastic ingredients in 7 industrial hand cleaning products and in 1 floor cleaning product; and

● Names of unverified polymeric ingredients of concern in 33 cleaning products (across 6 product categories).

A recent study in the Netherlands found suspected plastic ingredients in 10 out of over 400 tested abrasive floor cleaners on the Dutch market and documented indications that persistent and non-soluble polymers (e.g. polypropylene terephthalate) are being used in certain laundry detergents.[46]

Based on the available scientific evidence, there is no justification for limiting a ban on microplastic ingredients to just one industry and not others in light of the stated intention to reduce the risk and severity of impacts of microplastics and to provide a level playing field for industry. We therefore believe that extending the ban to cover cleaning products would ensure that microplastic ingredients are not used in current or future formulations and would ensure a level playing field.

Therefore, given that there is evidence to suggest that microplastic ingredients may be used in product categories (such as cleaning products and make up), beyond those covered by the Government’s current proposal, now and in the future, and that these products enter drainage and ultimately reside in the natural environment, we urge that the ban should cover all product categories that could reach the marine environment. We therefore welcome the commitment of the Government to working with the Hazardous Substances Advisory Committee (HSAC) to assess the case for extending the ban to further categories of products[47], look forward to providing input to this work and urge the Government to release a prompt timeline and scope for this work in due course.

 

2. Impacts on the free movement of goods and services

The proposed ban will impact the free movement of goods, at least where voluntary actions to remove microplastic ingredients from rinse-off cosmetics and personal care products have yet to be undertaken. Despite these impacts, the proposed ban is permissible under the Treaties.

In general, Member States have wide discretion in laying down rules and adopting measures.[48] But where this implicates the free movement of goods between Member States, that discretion is circumscribed by Articles 34 and 35 of the Treaty on the Functioning of the European Union (TFEU), which prohibit quantitative restrictions and measures of equivalent effect on imports and exports between Member States,[49] unless the measure falls under one of the exceptions in Article 36 TFEU:

The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.[50]

Protection of the environment and public health fall within the scope of Article 36 TFEU.[51] Article 36 TFEU thus allows the UK to maintain a quantitative restriction on the sale and manufacture of goods—here, rinse-off personal care products containing microbeads, defined to mean any water-insoluble solid plastic particle of less than or equal to 5mm in any dimension—if justified on environmental or public health grounds and effective toward that end. The justification for the proposed ban explicitly includes the protection of the environment and public health—both of which fall within the scope of Article 36 TFEU—and the expansive scientific and empirical evidence on record support the conclusion that the ban would be effective toward that end (see supra).

In addition, however, the measure must also not constitute a disguised restriction on trade or means of arbitrary discrimination.[52] With respect to a disguised restriction on trade, there is no indication whatsoever that a protectionist reason exists for the proposed ban. The UK Government is acting in good faith on this problematic source of microplastic pollution and should be applauded. With respect to arbitrary discrimination, it has been consistently held that national legislation does not arbitrarily discriminate where the national provision, “in accordance with the principle of proportionality, [is] appropriate for ensuring attainment of the objective pursued and [does] not go beyond what is necessary in order to attain that objective.”[53] Here, the stated objective by Defra is to protect the environment and food supply from further pollution resulting from the use of microplastic ingredients.[54] Eliminating microplastic ingredients in rinse-off cosmetics and personal care products certainly ensures that objective (i.e. it reduces further microplastic pollution from entering in the environment and food supply) and does not go further than necessary for the attainment of this objective. It is thus proportionate and not arbitrary.

The suggestion that the ban on the manufacture of rinse-off cosmetics and personal care products containing microplastic ingredients may somehow violate the free movement of services should be summarily rejected.[55] A ban on the manufacture of a product is not a ban on a service, as that term is understood and interpreted under EU law,[56] and does not implicate the free movement of services any more than the ban on the sale of a product does.[57] Both the ban on the sale and manufacture relate to goods and are thus governed by Articles 34-36 TFEU. The restrictions on their sale and manufacture are simply means to enact the restriction of these goods. Put another way, the proposed ban on the sale of these products in effect constitutes an import restriction and the proposed ban on the manufacture of these products in effect constitutes an export restriction. Both restrictions are governed by Articles 34 and 35 TFEU, respectively, and are permissible under Article 36 TFEU for the reasons outlined above.

In summary, it is clear that the proposed Environmental Protection (Microbeads) (England) Regulations 2017 does not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States but is justified on environmental grounds, and is therefore proportionate and permissible under Article 36 TFEU. The UK Government’s purpose is clearly to avoid marine pollution from the use of microplastic ingredients in cosmetics and personal care products, rather than to be protectionist. The only way to achieve this is through a ban on the manufacture and sale of such products, where they contain microplastic ingredients. 

 

References



[1] As per the EU Regulation on general product safety, see http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32001L0095

[2] Sherrington, C., Darrah, C., Hann, S., Cole, G. & Corbin, M. (2016) Study to support the development of measures to combat a range of marine litter sources. Report for European Commission ; DG Environment.

[3] Fauna & Flora International (2017). Removing or restricting microplastic ingredients or “microbeads” from consumer and industrial products: FFI guidance on improving corporate ingredient policies and/or regulatory measures to effectively prevent sources of microplastic pollution. Available at: http://www.fauna-flora.org/wp-content/uploads/FFI-Microbeads-Guidance-Document-January-2017.pdf  http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-committee/environmental-impact-of-microplastics/oral/33831.pdf

[4] Personal communications with Thomas Maes of the Centre for the Environment, Fisheries and Aquaculture Services have revealed that preliminary data on microplastic sampling downstream of UK wastewater treatment facilities show that the maximum retention rate of microplastic in the UK is 80%; Environmental Audit Committee (2016). Oral Evidence: Environmental Impact of Microplastics, HC 179 Tuesday 24 May 2016.

[5] Secretariat of the Convention on Biological Diversity and the Scientific and Technical Advisory Panel – CEF (2012). Impacts of Marine Debris on Biodiversity: Current Status and Potential Solutions. Montreal, Technical Series No. 67.

[6] Tanaka, K. and Takada, H. (2016). Microplastic fragments and microbeads in digestive tracts of planktivorous fish from urban coastal waters. Scientific Reports, 6, 34351.

[7] Fauna & Flora International (2017). Removing or restricting microplastic ingredients or “microbeads” from consumer and industrial products: FFI guidance on improving corporate ingredient policies and/or regulatory measures to effectively prevent sources of microplastic pollution. Appendix 1. Available at: http://www.fauna-flora.org/wp-content/uploads/FFI-Microbeads-Guidance-Document-Appendix-1-January-2017.pdf

[8] Mato, Y. et al. (2001) Plastic resin pellets as a transport medium for toxic chemicals in the marine environment. Environ. Sci. Technolo. 35, 318-324.

[9] Wardrop, P., Shimeta, J., Nugegoda, D., Morrison, P. D., Miranda, A., Tang, M., & Clarke, B. O. (2016). Chemical pollutants sorbed to ingested microbeads from personal care products accumulate in fish. Environmental Science & Technology, 50(7): 4037-44.

[10] Hahladakis, J. et al. (2018) An overview of chemical additives present in plastics: Migration, release, fate and environmental impact during their use, disosal and recycling. J of Hazardous Materials, 179-199 and references therein; Koelmans, A. et al. 2014 Leaching of plastic additives to marine organisms. Environmental Pollution, 49-54.

[11]  Rochman, C. M., et al. (2013). Ingested plastic transfers hazardous chemicals to fish and induces hepatic stress. Sci Rep, 3:3263;

Rochman, C. M., Lewison, R. L., Eriksen, M., Allen, H., Cook, A. M., & Teh, S. J. (2014). Polybrominated diphenyl ethers (PBDEs) in fish tissue may be an indicator of plastic contamination in marine habitats. Science of the Total Environment, 476, 622–633

[12] Wright, S. L. and Kelly, F. J. (2017). Plastic and Human Health: A Micro Issue? Environmental Science & Technology, 51(12): 6634–47.

[13] House of Commons Environmental Audit Committee (2016). Environmental impact of microplastics: Government Response to the Committee’s Fourth Report of Session 2016–17.

[14]  As per the EU Regulation on general product safety, see http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32001L0095

[15] UNEP (2015) Biodegradable Plastics and Marine Litter. Misconceptions, concerns and impacts on marine environments. United Nations Environment Programme (UNEP), Nairobi.

[16] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/630863/microbeads-consult-sum-resp.pdf

[19] http://ec.europa.eu/growth/tools-databases/tris/en/search/?trisaction=search.detail&year=2017&num=353

[20] http://www.lushusa.com/Stories-Article?cid=article_all-that-glitters

[21] Tanaka, K. and Takada, H. (2016). Microplastic fragments and microbeads in digestive tracts of planktivorous fish from urban coastal waters. Scientific Reports, 6, 34351.

[22] Cosmetics Europe (2015). Cosmetics Europe Recommendation on Solid Plastic Particles (Plastic Micro Particles https://www.cosmeticseurope.eu/files/3714/7636/5652/Recommendation_on_Solid_Plastic_Particles.pdf

[23]  Leslie, H. A. (2014). Review of Microplastics in Cosmetics. Report to the Dutch Ministry of Infrastructure and the Environment. The Hague, Netherlands; Leslie, H. A. (2015). Plastic in Cosmetics, Are we polluting the environment through our personal care?. United Nations Environment Programme (UNEP), 2015. Report for the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA).

[24]Rochman, C. et al. (2015) Scientific evidence supports a ban on microbeads. Society for Conservation Biology. Available at: https://conbio.org/images/content_policy/03.24.15_Microbead_Brief_Statement.pdf

[25] Fauna & Flora International (2017). Removing or restricting microplastic ingredients or “microbeads” from consumer and industrial products: FFI guidance on improving corporate ingredient policies and/or regulatory measures to effectively prevent sources of microplastic pollution. Appendix 6 Available at: http://www.fauna-flora.org/wp-content/uploads/FFI-Microbeads-Guidance-Document-Appendix-6-January-2017.pdf 

[27] Tanaka, K. and Takada, H. (2016). Microplastic fragments and microbeads in digestive tracts of planktivorous fish from urban coastal waters. Scientific Reports, 6, 34351.

[28]  Sherrington, C., Darrah, C., Hann, S., Cole, G. & Corbin, M. (2016) Study to support the development of measures to combat a range of marine litter sources. Report for European Commission; DG Environment.; Leslie, H. A. (2015). Plastic in Cosmetics, Are we polluting the environment through our personal care? United Nations Environment Programme (UNEP), Report for the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA).

[29] Leslie, H. A. (2014). Review of Microplastics in Cosmetics. Report to the Dutch Ministry of Infrastructure and the Environment. The Hague, Netherlands.

[30] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/643381/microbeads-draft-si-2017.pdf

[32] http://ec.europa.eu/growth/tools-databases/tris/en/search/?trisaction=search.detail&year=2017&num=353

[33]Rochman, C. et al. (2015) Scientific evidence supports a ban on microbeads. Society for Conservation Biology;.  plus Leslie, UNEP etc Leslie, H. A. (2014). Review of Microplastics in Cosmetics. Report to the Dutch Ministry of Infrastructure and the Environment. The Hague, Netherlands; Leslie, H. A. (2015). Plastic in Cosmetics, Are we polluting the environment through our personal care?. United Nations Environment Programme (UNEP), 2015. Report for the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA).

[34]  Sherrington, C., Darrah, C., Hann, S., Cole, G. & Corbin, M. (2016) Study to support the development of measures to combat a range of marine litter sources. Report for European Commission ; DG Environment; Leslie, H. A. (2015). Plastic in Cosmetics, Are we polluting the environment through our personal care?. United Nations Environment Programme (UNEP), Report for the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA).

[35] Leslie, H. A. (2014). Review of Microplastics in Cosmetics. Report to the Dutch Ministry of Infrastructure and the Environment. The Hague, Netherlands.

[36]  http://www.fauna-flora.org/wp-content/uploads/FFI-Microbeads-Guidance-Document-Appendix-3-January-2017.pdf

[37] Sherrington, C., Darrah, C., Hann, S., Cole, G. & Corbin, M. (2016) Study to support the development of measures to combat a range of marine litter sources. Report for European Commission DG Environment.

[38] http://www.greenpeace.org.uk/sites/files/gpuk/YouGov%20polling.pptx

[39] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/630863/microbeads-consult-sum-resp.pdf

[40] Sherrington, C., Darrah, C., Hann, S., Cole, G. & Corbin, M. (2016) Study to support the development of measures to combat a range of marine litter sources. Report for European Commission DG Environment.

[41] Cosmetic Ingredient Review (2012). Safety Assessment of Nylon as Used in Cosmetics. www.cirsafety.

org/sites/default/files/nylon122012tent_faa_final%20for%20posting.pdf; Cosmetic Products Notification Portal (2013). Article 13 user manual. http://ec.europa.eu/consumers/sectors/cosmetics/files/pdf/cpnp_user_manual_en.pdf

[42] Data collected in 2016 is summarised in FFI’s Microbeads Guidance Document, Appendix 3 (available at: http://www.fauna-flora.org/wp-content/uploads/FFI-Microbeads-Guidance-Document-Appendix-3-January-2017.pdf); for the full survey which includes data collected in 2017, please get in touch with goodscrubguide@fauna-flora.org

[43]  Sherrington, C., Darrah, C., Hann, S., Cole, G. & Corbin, M. (2016) Study to support the development of measures to combat a range of marine litter sources. Report for European Commission DG Environment.

[44] http://www.greenpeace.org.uk/sites/files/gpuk/YouGov%20polling.pptx

[45] FFI (2017). Microbeads Guidance Document, Appendix 3, Appendix 4. Available at:

http://www.faunaflora.org/wpcontent/uploads/FFIMicrobeadsGuidanceDocumentAppendix3January2017.pdf

And http://www.fauna-flora.org/wpcontent/uploads/FFIMicrobeadsGuidanceDocumentAppendix4January2017.pdf

[46] Verschoor et al (2016). Emission of microplastics and potential mitigation measures - Abrasive cleaning agents, paints and tyre wear. RIVM Report 2016-0026. National Institute for Public Health and the Environment - Ministry of Health, Welfare and Sport: Bilthoven. http://rivm.nl/Documenten_en_publicaties/Wetenschappelijk/Rapporten/2016/juli/Emission_of_microplastics_and_potential_mitigation_measures_Abrasive_cleaning_agents_paints_and_tyre_wear

[47] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/630863/microbeads-consult-sum-resp.pdf

[48]  See Joined Case C-46/93 and C-48/93 Brasserie du Pêcheur v Germany R v Secretary of State of Transport, ex parte Factortame (No. 3) [1996] ECR I-1029, paras 48-49.

[49]  See e.g. Case C-100/08 Commission v Belgium [2009] ECR I-140, paras 94 et seq (Belgian regulation preventing the marketing of indigenous European birds born and bred in captivity, which were legally marketed in the territory of other Member States, constituted a quantitative restriction within the meaning of Article 34 TFEU).

[50]  Article 36 TFEU.

[51] See e.g. Case C-2/10 Azienda Agro-Zootecnica Franchini Sarl [2010] ECR I-5031, para. 57; see also Case C-6/03 Deponiezweckverband Eiterköpfe [2005] ECR I-2753, para. 61; see also Case C-100/08 Commission v Belgium [2009] ECR I-140, paras 94 et seq.

[52] See Case C-192/01 Commission v Denmark [2003] ECR I-9693; Case C-217/99 Commission v Belgium [2000] ECR I-10251; Case 55/99 Commission v France [2000] ECR I-11499; Case C-1/96 Compassion in World Farming [1998] ECR I-1251, paras 65-68 (Member State cannot object to the exportation of veal on the ground that the directive laying down minimum standards for the protections of calves “regulated exhaustively the Member States’ powers”); Opinion AG Cosmas, pp. 54 et seq in Case C-318/98 Criminal Proceedings v Giancarlo Fornasar and Others [2000] OJ 2000/C 302/03 (by laying down an exhaustive list of hazardous waste, the secondary legislation limited the discretion of national authorities to subject other waste to the more stringent arrangements applicable to hazardous waste); see also Nicolas de Sadeleer, EU Environmental Law and the Internal Market, Oxford University Press (2 January 2014), pp. 353-354 (complete harmonization is rare in the case of directives adopted on the basis of Article 192(1) TFEU).

[53] Case 104/75 Officier van Justitie v De Peijper [1976] ECR 613; Case C573/12 Ålands vindkraft AB v Energimyndigheten ECLI:EU:C:2014:2037, para. 76.

[54] Department for Environment, Food & Rural Affairs, Impact Assessment: Implementation of the Environmental Protection (Microbeads) (England) Regulations 2017 (IA No. Defra2083), p. 1.

[55] See Cosmetic, Toiletry and Perfumery Association, UK Cosmetics Industry Trade Association’s Comments on Notification Number: 2017/353/UK (UK): The Environmental Protection (Microbeads) (England) Regulations 2017 (15 September 2017); Henkel LTD., Henkel Ltd. Comments on Notification Number: 2017/353/UK (UK): The Environmental Protection (Microbeads) (England) Regulations 2017 (25 September 2017).

[56] See e.g. Case 155/73 Giuseppe Sacchi [1974] ECR 409; Case C-55/93 Van Schaik Automatenaufstellungs v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609; Case C-451/99 Cura Anlagen v Auto Source Leasing [2002] ECR I-3193.

[57] Case C-275/92 HM Customs and Excise v Schindler [1994] ECR I-1039.


en
  Henkel Ltd. on 25-09-2017
Click to expand

 

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.

 

 

 

 

 

About Henkel

Founded in 1876, Henkel looks back on more than 140 years of success. Henkel employs more than 50,000 people globally – a passionate and highly diverse team, united by a strong company culture, a common purpose to create sustainable value, and shared values. Henkel currently employs approximately 1,000 employees in the UK & Ireland across six sites, which include manufacturing, packaging, R&D, Sales & Marketing, Customer Care, Technical Assistance and Functions.

Henkel Beauty Care is one of the largest cosmetic companies in hair cosmetics. With more than 111 years of experience in the development of breakthrough innovations in the fields of Hair Colouring, Hair Care and Hair Styling, we have gained leading positions across regions and customer segments. Schwarzkopf Professional is part of the Henkel Beauty Care business unit. It is one of the leading product suppliers to the international hairdressing industry. Schwarzkopf Professional is present in over 100 countries and works with more than 230,000 salons. Henkel is well known for its Skin, Oral and Body care products as well.

 

 

 


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  CTPA on 15-09-2017
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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.

 

Please note:

 

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.

 

Conclusion

 

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.

 

References:

 

1. Plastics in the Marine Environment, Eunomia, Bristol, June 2016

 

2. Murphy, F., Ewins, C., Carbonnier, F. & Quinn, B. (2016)

 

Wastewater Treatment Works (WwTW) as a Source of Microplastics in the Aquatic Environment. Environ. Sci. Technol. 50 5800‐5808

 

 

 

3. Carr, S.A., Liu, J. & Tesoro, A.G. (2016)

 

Transport and Fate of Microplastic Particles in Wastewater Treatment Plants.

 

Water Res. 91 174‐182

 

 

4. Gouin, T., Avalos, J., Brunning, I. Brzuska, K., De Graaf, J., Koning, T., Mayberg, M., Rettinger, K., Schlatter, H., Thomas, J., Van Welie, R. & Wolf, T. (2015)

 

Use of MicroPlastic Beads in Cosmetic Products in Europe and their Estimated Emmissions to the North Sea Environment.Int. J. Appl. Sci. 141 40‐46

 

 

5. Herzke, D., Anker‐Nilssen, T., Nost, T.H., Gotsch, A., Christensen‐Dalsgaard, S., Langset, M., Fangel, K & Koelmans, A.A. (2016)

 

Negligible Impact of Ingested Microplastics on Tissue Concentrations of Persistent Organic Pollutants in Northern Fulmars off Coastal Norway.

 

Environ. Sci. Technol. 50 1924‐1933

6. Kwon, J.‐H., Chang, S., Hong, S.H. & Shim, W.J. (2017)

 

Microplastics as a Vector of Hydrophobic Contaminants: Importance of Hydrophobic Additives. Integr.

 

Environ. Assess. Manag. 13 494‐499