UK Publishes Draft Legislation Prohibiting the Manufacture and Supply of Cosmetic Products Containing Microbeads

On 11 September 2017, the UK Department for Environment, Food and Rural Affairs (DEFRA) published draft regulations prohibiting the manufacture and supply of rinse-off personal care products containing microbeads. The draft Regulations (available here) are to be laid before the UK Parliament for approval.

Under the draft legislation:

companies will be prohibited from manufacturing such products from 1 January 2018, and from supplying such products from 30 June 2018; and
failure to comply will be an offence punishable by a fine of up to 10% of annual turnover in England.

Background

The new legislation forms part of the UK’s marine strategy to achieve and maintain clean, healthy and ecologically diverse marine waters by 2020 as part of a wider EU strategy. It is estimated that up to 680 tonnes of plastic microbeads are used in cosmetic products such as face scrubs and toothpastes sold in the UK each year. These microbeads do not biodegrade and can often end up in marine waters, being too small to be completely filtered out in sewage treatment systems. Evidence has shown that such particles absorb toxic chemicals and pathogens and are ingested by marine organisms, damaging their health and thereby entering the food chain. Voluntary measures have already been taken by industry, but the UK Government wishes by introducing these Regulations to ensure consistent compliance across industry.

Several other countries have already implemented, or are seeking to implement, equivalent measures, including in the US, Italy, France, Ireland, South Korea, India and Australia.

New Offences

Under the new Regulations, it will be an offence to manufacture and supply (by way of sale, promotional prize or gift) rinse-off personal care products containing microbeads of 5mm or less in any dimension. “Microbeads” are defined as water-insoluble plastic particles, consisting of a synthetic polymeric substance or a combination of such substances.

Cosmetic products covered by the ban will include products applied to any external part of the human body (including skin, hair, lips and nails), teeth or oral cavity, for the purpose of cleaning, protecting or perfuming, maintaining or restoring the body’s condition or changing its appearance. It will apply to products that are intended to be promptly removed by washing or rinsing with water, rather than left to be absorbed or otherwise worn off.

Sanctions and local authority powers

The Regulations will be enforced by local authorities who will have the power to require the person committing an offence to pay a fine of up to 10% of that person’s annual turnover in England.

Under the Regulations, local enforcement offices will have the power to enter business premises and carry out any necessary investigations to ascertain whether there has been an offence if they have reasonable belief that an offence has been committed. Local authorities will also have the power to issue variable monetary penalties, compliance notices and stop notices, and to accept “enforcement undertakings” signed by the offending company setting out the action it will take to prevent prohibited activities, compensate those affected by the offence, and steps to restore any likely damage to the environment.

The Regulations also provide for the publication of enforcement action taken by local authorities.

The Regulations require local authorities to consult on and publish guidance on the sanctions and penalties available under the Regulations, including the circumstances in which may or may not be imposed, factors to be taken into account in calculating penalties, and the rights to make representations and appeal decisions handed down by the local authorities.

Next steps

The draft Regulations are to be laid before both Houses of Parliament in the UK for approval.

If passed, companies will need to ensure that they stop manufacturing rinse-off personal care products containing microbeads by 1 January 2018 and companies (from manufacturers to distributors and retailers) will no longer be able to supply remaining stock from 30 June 2018. This will need to be factored in to supply chain planning and onward supply agreements.

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