In 2016 the Government announced its intention to ban the manufacture and sale of rinse off personal care products containing microbeads. This month new legislation has come into force. The Environmental Protection (Microbeads) (England) Regulations 2017 introduce the ban on manufacturing these products, with a ban on selling them set to follow in July 2018.
The legislation is made under the Environmental Protection Act 1990 and the Regulatory Enforcement and Sanctions Act 2008. Trading Standards departments will be responsible for enforcing the ban and the legislation includes options for both civil and criminal sanctions.
The regulations make it an offence to:
- Use microbeads in the manufacture of any rinse-off personal care product
- Supply, or offer to supply, any rinse-off personal care product containing microbeads
So, what are microbeads and why are they banned?
Microbeads are tiny plastic spheres that can be found in exfoliating facial scrubs, shower gels and toothpaste, among other products. The legislation defines them as “any water-insoluble solid plastic particle of less than or equal to 5mm in any dimension”. This section applies to their use in rinse off personal care products "any substance or mixture of substance that are intended for application to the human body (this includes the mouth and teeth) in the course of personal care treatment, which is washed or rinsed off with water once application is completed".
Once they are rinsed off after use, these pieces of plastic are washed down the drain and cannot be filtered out by many wastewater treatment plants, meaning that they easily enter and pollute our waterways. Although microbeads only represent a small proportion of the plastic waste in the ocean, because of their size, fish and other marine animals can and do eat them, introducing potentially toxic substances into the food chain.
According to a report by the Environmental Audit Committee, a single shower can flush as many as 100,000 microbeads, with this adding up to 86 tonnes per year from the UK alone.
What does the ban mean?
Cosmetic manufacturers in the UK, should no longer be adding microbeads to their products, as of 9th January 2018, if they are found to be in breach of the ban, local authorities can impose a civil variable monetary penalty (VMP).
A VMP is a fine used to remove any financial benefit of the non-compliance and as a deterrent. The local authority can determine the penalty amount and provide justification for the amount determined, which can be up to 10% of annual turnover of the business. VMPs are likely to be used where the offence is of medium severity or there are mitigating factors.
For less serious offences, authorities also have a number of non-monetary enforcement options including issuing compliance notices or stop notices, with a financial penalty being imposed for non-compliance with a notice, or they can seek an enforcement undertaking from the business which sets out voluntary steps the business will make to make amends for it’s non-compliance. An enforcement undertaking can avoid any civil or criminal sanctions, so long as the business carries out the actions within the timescale.
For more serious offences, repeat offences, or where civil sanctions have not been complied with, businesses may be prosecuted for a criminal offence and receive an unlimited fine.
The penalties will also apply to the sale or supply of products containing microbeads from July this year. For products already in the supply chain, distributors and retailers should ensure that any stock held is supplied before the ban comes into force in June. If buying from a UK manufacturer then microbeads should not be present in products manufactured after January, but many cosmetics are imported from other EC countries and beyond. There are currently only bans in place in the USA and Canada, with a ban coming into force in New Zealand this June, but in the rest of the world, microbeads will still be permitted in cosmetic products, so care should be taken when importing into the UK and assurances sought from suppliers.