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European Chemicals Agency Publishes Note on Identification of Microplastics in Anticipation of Ban

On 11 July 2018, the European Chemicals Agency (ECHA) published a Note outlining its approach to the identification of microplastics, and a possible ban (or partial ban) on their use. The note reports on responses to a recent stakeholder consultation, and summarises criteria for microplastic identification. Of particular interest to Hong Kong businesses, ECHA also examines the possible scope of an expected REACH restriction on the intentional use of microplastic particles in everyday consumer goods.

Microplastic particles are used in a range of products placed on the EU market, including cosmetics, personal care products, detergents, cleaning products, paints, products used in the oil and gas industry, and as abrasives. ECHA has noted that they pose potential environmental and health risks as they are (i) small and readily ingested by organisms throughout the food chain including by humans, and (ii) very resistant to normal environmental degradation and hence likely to persist in the environmental long after accomplishing their primary function.

ECHA’s Note focuses on microplastics which are released into the environment through the use of products which intentionally contain them. It acknowledges that the lack of an internationally recognised definition of microplastics has led to divergent regulatory approaches and a variety of legislative and voluntary initiatives.

For the purposes of the stakeholder consultation, ECHA adopted a working definition according to which microplastics were “any polymer, or polymer-containing, solid or semi-solid particle having a size of 5mm or less in at least one external dimension”. The Note builds on this working definition to set out four elements which should be taken into consideration cumulatively when identifying and defining microplastics under any new restrictive rules: substance identity, physical state, morphology and dimensions.

Substance identity: The Note takes polymers as “an appropriate starting point” for identifying substances to be subjected to restrictions. It proposes to exclude, however, naturally-occurring polymers such as cellulose or starch as these are “inherently (bio)degradable” and thus pose less of an environmental concern. Nonetheless, natural polymers which have been chemically modified (such as by cross-linking) may be considered microplastics if they fulfil the other conditions of physical state, morphology and dimensions.

Physical state: While solid polymers are of most concern, ECHA leaves open the question of semi-solid polymers. It notes that the stakeholder consultation did not give a clear answer as to whether semi-solid polymers were of concern and how they should be defined. Polymer substances are unlikely to be of concern if they are soluble in the product and also remain dissolved in the environment after release.

Morphology: With regard to the form or morphology of microplastic particles, ECHA notes that such particles may take the form of spheres, flakes or fibres. While there is currently insufficient information to exclude a particular shape, ECHA suggests that films with large surface areas and coated items may be excluded. If a polymer film is cut into smaller pieces and added to products (such as glitter-based products), however, then it is likely to be considered a microplastic.

Dimensions: The Note identifies some overlap with recent measures targeted at nanomaterials (including revisions to the REACH annexes in relation to information requirements for nanomaterials), but does not see these as problematic. Indeed, ECHA observes that “the need for a lower size limit [than 5mm] is not immediately evident” and states that the nanomaterial requirements do not preclude additional measures being introduced which would also apply to microplastic particles of less than one nanometre in size.

The Note emphasises that any ban or partial ban on microplastics will take into account additional criteria as set out in Annex XV of REACH. ECHA also underlines the importance of other considerations in delimiting the scope of a ban or partial ban. For example, microplastics which are present at point-of-use would likely fall within a potential restriction, whereas microplastics which are not released into the environment or which are completely consumed during their use (e.g. melted into a larger article via extrusion or other process) are less likely to be of concern and therefore unlikely to be targeted by a ban or partial ban. In addition, microplastics which have the potential to persist in the environment for a long time are more likely to fall within the scope of a ban. ECHA notes that solubility and biodegradability are key considerations for assessing the environmental concerns associated with microplastics.

The Note will form the basis for further hazard and risk assessment by ECHA. ECHA has also indicated that it will engage in targeted consultations with relevant stakeholders. ECHA’s investigatory work is expected to conclude by January 2019. For reference purposes, the full text of the Note includes a table explaining how the identification criteria and risk-related criteria may apply to indicative microplastic uses.

Hong Kong traders will appreciate that the Note has been published against a background of increasing attention being paid to plastics. As previously reported (see Certain Commonly Used Plastic Products to Be Banned, Others to Require Marking and Face Other Measures), the European Commission has published a draft law targeting single use plastics (SUPs). That future law concerns macroplastics (i.e., plastics with dimensions of more than 5mm) and, once passed, will ban a number of frequently used products (such as plastics straws, cutlery and plates) from the EU market, as well as impose other obligations on plastic goods producers.

Similarly, on 10 July 2018 the European Parliament’s Environment Committee voted to approve a report which would amend the Commission’s plans to reduce plastic pollution. In particular, the report proposes a targeted ban on microplastics in cosmetic and cleaning products, and a complete ban on oxo-degradable plastics. It opposes the introduction of an EU-wide plastics tax, and suggests that biodegradable products and bioplastics should not be relied upon to provide ideal solutions.

The Commission may take the Parliament’s recommendations into account when implementing the European Strategy for Plastics in a Circular Economy.

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