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ECHA’s proposal to restrict intentionally added microplastics

  • United Kingdom
  • Environment
  • Health and safety

13-11-2019

The public consultation launched by the European Chemicals Agency (“ECHA”) on the topic of microplastics closed on 20 September 2019 with the submission of 477 comments. The consultation followed the publication by ECHA earlier this year of a restriction proposal for microplastic particles that are intentionally added to mixtures used by consumers or professionals in order to minimise their release to the environment.

ECHA’s justification for the restriction lies in the characteristics of microplastics, which were found to be highly persistent and bioaccumulative in the environment, to contaminate food chains and be practically impossible to remove once released. The accompanying report also stresses the inability to properly assess the risks posed by the breakdown of microplastics in the environment and their long-term effects on human health, although ECHA considers that our understanding of risks will significantly increase over the next 10 years.

Restrictions under REACH (the European regulation on chemicals) generally limit or ban the manufacture, placing on the market (including imports) or use of a substance on its own, in a mixture or in an article, including those that do not require registration such as substances manufactured or imported below 1 tonne per year.

ECHA’s proposed restriction provides for three types of measures:

  1. a restriction on the placing on the market of microplastics on their own or in mixtures where their use will inevitably result in releases to the environment, irrespective of the conditions of use;
  2. a labelling requirement to minimise releases to the environment; and
  3. a reporting requirement to improve the quality of information available to assess the potential for risks in the future.

Restriction of intentionally added microplastics

The restriction would ban the placing on the market of intentionally added microplastics, i.e. of material containing polymer particles of less than 5mm and/or fibres of less than 15mm. Naturally occurring polymers which are not chemically modified and (bio)degradable polymers would fall outside the scope of the restriction.

Intentionally added microplastics particles are used in a wide range of products and therefore the proposed restriction is expected to have an impact on various sectors. Products likely to be affected include fertilisers, cosmetics, detergent and maintenance products, paint, coatings, inks as well products used in the medical, construction and oil and gas industries.

By way of derogation, the proposed restriction will not apply to:

  1.  substances or mixtures containing microplastic for use at industrial sites;
  2. medicinal products for human or veterinary use;
  3. substances or mixtures that are regulated in the EU under Regulation (EC) No xxxx/xxx* on Fertilising Products (*Regulation under development);
  4. substances or mixtures containing microplastic where the microplastic is contained by technical means throughout the whole lifecycle to prevent releases to the environment and any microplastic containing wastes arising are incinerated or disposed of as hazardous waste;
  5. substances or mixtures containing microplastic where the physical properties of the microplastic are permanently modified when the substance or mixture is used such that the polymers no longer fulfil the definition of microplastic; and
  6. substances or mixtures containing microplastic where the microplastic is permanently incorporated into a solid matrix when used.

In order to give sufficient time to the industry to adapt and to substitute microplastics with suitable alternatives, transitional arrangements are expected to apply. This will not however concern the placing on the market of cosmetics and other mixtures containing microbeads which will automatically be banned upon the restriction entering into force.

A transitional period of 2 years is proposed for medical devices and in vitro diagnostic devices; 4 years for rinse-off cosmetic products; 5 years for detergent and maintenance products and agricultural and horticultural products such as seed treatment, plant protection products and biocides; 6 years for leave-on cosmetic products.

Labelling requirement

For substances or mixtures where the release of microplastics to the environment is not inevitable, the proposed restriction will instead impose labelling requirements on the manufacturers, importers or downstream users of the substance containing microplastics.

Such parties will need to ensure that the label and/or safety data sheet, instructions for use or package leaflet contain any relevant instructions for use in order to avoid releases of microplastics to the environment, including at waste lifecycle stage. The label will need to be visible, legible and indelible and written in the official language of the Member State where the mixture is placed on the market unless the Member State concerned provides otherwise.

The labelling requirement will apply 18 months after the restriction enters into force.

Reporting requirement

Downstream users of substances or mixtures containing microplastics to which certain derogations apply will be required to provide ECHA with certain information relating to their use of microplastics on an annual basis. The information given will allow ECHA to improve its knowledge of microplastics and will include the identity of the polymer used, a description of the use of the microplastic, the quantity of microplastics used and the estimated or measured quantity of microplastics released into the environment in the previous year.

The reporting requirement will commence 12 months after the entry into force of the restriction.

Next steps

ECHA’s Committees for Risk Assessment and Socio-economic Analysis are expected to adopt a consolidated opinion on the proposed restriction in June 2020.

ECHA will then send the opinions to the European Commission, who will form a view as to whether the conditions for the restriction are met. It will then prepare a proposal to amend Annex XVII to REACH, which Member States can vote on in the REACH Committee. The vote will be followed by a period of scrutiny by the European Parliament and the Council before the restriction measure can be adopted. If agreed, the restriction is expected to be adopted in 2022 with the transition periods described above.

With Brexit still being an unresolved issue in the current political landscape, it is uncertain whether the restriction would have an effect on UK legislation. Nonetheless since the UK has already banned the sale of rinse-off cosmetics and cleaning products containing microbeads in 2018, it would be prudent for manufacturers to review their product line and carefully assess whether certain products should be reformulated.

 

 

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