Intentional Or Not? Questions Loom Over EU's Proposed Micro-Plastic Particle Restrictions

Author:Ms Ursula Schliessner, Christian Fulda, Aleš Bartl and Preslava Dilkova
Profession:Jones Day
 
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In Short

The Situation: The European Commission ("Commission") has requested that the European Chemicals Agency ("ECHA") investigate the need for an EU-wide restriction on "intentionally added' micro-plastic particles.

The Development: Following a stakeholder consultation, ECHA released a Question & Answer document that addresses the definition of "intentionally added".

Looking Ahead: The guidance proposed by ECHA is likely not sufficient to distinguish between "intentional use" and "unintentional use".

In response to an Article 69(1) Registration, Evaluation, Authorisation and Restriction of Chemicals ("REACH") request from the European Commission and as part of the general EU Plastics Strategy, in January 2018, ECHA announced its intention to investigate the need for an EU-wide restriction on "intentionally added" micro-plastic particles in products or applications that "intentionally release" micro-plastic particles into the environment. In both cases, the question focuses on the legal interpretation of the term "intentional". National bans on micro-plastics used in cosmetic products already exist in EU Member States France, Italy, and the UK.

ECHA called for evidence from March to May 2018, followed by a stakeholders' workshop. The call was intended to gather all possible intentional uses of micro-plastic particles in products; e.g., cosmetics (rinse-off products), personal care products, detergents, cleaning products, paint, and products used in the oil and gas industry. With regard to consumer products, micro-plastics are most commonly used as an abrasive (microbeads), but can also have other functions, such as controlling the viscosity (thickness), appearance and stability of a product. Oxo-plastics or oxo-degradable plastics (used in applications such as agricultural films, rubbish and carrier bags, food packaging, and landfill covers) were also part of the investigation.

With regard to the legal term "intentional", ECHA provided two pertinent questions and answers set out in a recent Q&A document.

First, micro-plastic particles can be intentionally released even if they are not intentionally added. The reason being that products could be designed with the knowledge that micro-plastic particles are intentionally released during their lifecycles (see Q&A document C.5.). These types of products are within the scope of ECHA's investigation. At the same time, ECHA states elsewhere that many plastic products do not intentionally...

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