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

Date01 November 2018
Published date01 November 2018
An EU ban on microplastics in cosmetic products and the
right to regulate
Esther Kentin
Heidi Kaarto
Email: 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 Statesaction 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.
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,
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 socalled rinseoff
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-
France also notified the World Trade Organization (WTO)
according to Article 10(6) of the Agreement on Technical Barriers to
Trade (TBT Agreement).
In both notifications, the ban on microplas-
tics in rinseoff 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, nonEU 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
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.
Case E9/16, EFTA Surveillance Authority v Kingdom of Norway (EFTA Court, 14 July 2017).
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.
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
| RECIEL. 2018;27:254266.

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