An EU ban on microplastics in cosmetic products and the right to regulate

• Date: 01 November 2018
• Published date: 01 November 2018
• DOI: http://doi.org/10.1111/reel.12269

SPECIAL ISSUE ARTICLE

An EU ban on microplastics in cosmetic products and the

right to regulate

Esther Kentin

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Heidi Kaarto

Correspondence

Email: e.kentin@law.leidenuniv.nl Abstract

In January 2018, the European Commission initiated a restriction procedure on

microplastics in cosmetic products. This article deals with the legal implications of a

European Union (EU) restriction under the Regulation on the Registration, Evalu-

ation, Authorisation and Restriction of Chemicals (REACH) in relation to the right to

regulate in the EU and in the context of the World Trade Organization (WTO). The

article argues that in the aftermath of harmonization, the legal scope for EU Mem-

ber States is dependent on the definition that will be adopted as regards microplas-

tics under REACH: the wider the scope of the restriction, the more probable it is

that Member States’action is restrained. In the context of WTO rules, similar con-

siderations apply as regards the scope of the definition: the wider the scope of an

EU ban, the more demanding it will be to satisfy the requirements under the Agree-

ment on Technical Barriers to Trade. Providing scientific evidence is instrumental, as

there is little room for the precautionary principle in both regimes.

1

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INTRODUCTION

In line with the European Union (EU) Plastics Strategy published in

January 2018, the European Commission has requested the Euro-

pean Chemical Agency (ECHA) to prepare a dossier for restricting

microplastics in certain products. According to the Court of the

European Free Trade Association (EFTA) in EFTA Surveillance Author-

ity v Kingdom of Norway,

1

the Commission has to start this proced-

ure in case of a national measure restricting the use and placing on

the market of chemical substances by a Member State. Following its

notification in November 2016, France has, as the first EU Member

State, implemented a restriction on the use of microplastics in cer-

tain cosmetic and personal care products, the so‐called rinse‐off

products for exfoliation or cleansing. The French ban was communi-

cated to the Commission according to Directive 2015/1535, which

requires EU Member States to notify ‘any draft technical regulation’

in order to assess the effects of the proposed regulation on the mar-

ket.

2

France also notified the World Trade Organization (WTO)

according to Article 10(6) of the Agreement on Technical Barriers to

Trade (TBT Agreement).

3

In both notifications, the ban on microplas-

tics in rinse‐off cosmetic products –products that are rinsed off

immediately after use –was justified with a reference to interna-

tional and European obligations regarding the status of the marine

environment. Other Member States have announced similar legisla-

tion. Furthermore, non‐EU Member States, such as the United

States, Canada, South Korea and New Zealand, have either notified

or have already in force regulations which ban certain microplastics

in certain cosmetic products.

In this article, we discuss the issues that may arise as a result of

these national bans and a possible EU ban on microplastics with

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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,

provided the original work is properly cited.

© 2018 The Authors. Review of European, Comparative & International Environmental Law published by John Wiley & Sons Ltd.

1

Case E‐9/16, EFTA Surveillance Authority v Kingdom of Norway (EFTA Court, 14 July 2017).

2

Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September

2015 laying down a procedure for the provision of information in the field of technical

regulations and of rules on Information Society services [2015] OJ L241/1 art 5.

3

Agreement on Technical Barriers to Trade (adopted 15 April 1994, entered into force 1

January 1995) 1868 UNTS 120 (TBT Agreement).

DOI: 10.1111/reel.12269

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wileyonlinelibrary.com/journal/reel RECIEL. 2018;27:254–266.