Last week Member State representatives in the European Commission’s REACH Committee voted to adopt a proposal to ban intentionally added microplastics from being placed on the EU market. The draft Act amends the REACH Regulation by banning certain microplastic uses. It captures a wide range of businesses and applies to manufacturers, importers and downstream users of microplastics. Below we explore some of the draft Act’s key principles.
What is REACH?
The Regulation on the registration, evaluation, authorisation and restriction of chemicals (REACH) is the main EU law which seeks to protect human health and the environment from risks that can be posed by chemicals. It restricts substances deemed to be of concern and obliges chemical companies to manage the risks posed from chemicals and provide safety information on certain substances.
The REACH Committee comprises representatives from each of the 27 EU Member States who decide to adopt or reject opinions sent from the European Chemicals Agency (ECHA) on possible restrictions.
What are ‘intentionally-added’ microplastics and what products are they in?
Intentionally added microplastics are those which are present in products to confer a sought-after characteristic. A sought-after characteristic might be altering the colour of a product, changing its texture, fluidity or bulk or altering its properties in reaction to water absorption or heat resistance. The range of products which currently incorporate intentionally added microplastics is diverse; it includes certain cosmetic products (e.g. certain toothpastes, face scrubs, make-up etc.), fragrances, air care products and detergents.
Intentionally added microplastics differ from microplastics which are unintentionally released from products, such as tyres, litter and fishing nets. Whilst all microplastics remain a focal area for EU policymakers, the current regulatory proposal only captures those which are intentionally added.
Are all ‘intentionally added’ microplastics caught?
No. The ban does not seek to capture microplastics the release of which is minimised by the design of the product itself. For example, microplastics may be contained in concrete, but as these are permanently enclosed in a solid matrix, the risk of release is minimised. Further, the current proposal does not address microparticles from industrial sites, certain medicinal and veterinary products, in-vitro devices, some fertilisers, food additives and food as the Commission considered that these would be better addressed in other regulations.
When will the ban take effect?
As the proposal has been approved by the REACH Committee it will now be sent to the European Parliament and Council for consideration. This phase takes three months. If unopposed the proposal will be adopted by the summer of 2023. The likelihood of the proposal being accepted is high, as it has been a long time in the making and we do not expect either the Council nor the Parliament to delay adoption further.
If adopted, the wording of the draft Act envisages a series of product-specific transitional periods, intended to give industry sufficient time to reformulate their products and substitute synthetic polymer microparticles. A simplified timetable (running from the enactment of the proposal) would ban microplastics in specific product groups as follows:
- 4 years: rinse-off cosmetic products.
- 5 years: waxes, polishes, air care products, non-excluded fertilisers and certain agricultural or horticultural products.
- 6 years: fragrances, leave-on cosmetic products.
- 8 years: plant protection and biocidal products and granular infill for use on synthetic sports surfaces.
- 12 years: lip, nail and make-up products.
Aside from the above bans, information requirements will apply including specific labelling requirements for lip, nail and make-up products from 8 years after the date of entry into force of the regulation up to the point of the ban.
What else is on the horizon?
The ban on intentionally added microplastics is only one step among the European Commission’s 2030 targets (as set out in the Zero Pollution Action Plan) to reduce the amount of microplastics released into the environment by 30%. Also expected is the European Commission’s legislative initiative aiming to reduce the environmental presence of unintentionally released microplastics from tyres, textiles, and plastic pellets. This is anticipated to include labelling, standardisation, certification, and regulatory measures to limit the release of these microplastics at all relevant stages of a product lifecycle. The Commission is also considering the introduction of Ecodesign requirements for tyres and synthetic textiles; a public consultation closed on 17 May 2022 and the legislative proposal is due to be published by the Commission on 17 May 2023.