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

Esther Kentin,Heidi Kaarto

doi:10.1111/reel.12269

Abstract

AbstractIn 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, Evaluation, 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 Member States is dependent on the definition that will be adopted as regards microplastics 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 considerations 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 Agreement on Technical Barriers to Trade. Providing scientific evidence is instrumental, as there is little room for the precautionary principle in both regimes.

Highlights

In line with the European Union (EU) Plastics Strategy published in January 2018, the European Commission has requested the European Chemical Agency (ECHA) to prepare a dossier for restricting microplastics in certain products
Would a European ban on microplastics stand the test under the TBT Agreement if challenged? We evaluate the requirements for a World Trade Organization (WTO)‐compliant technical measure, in particular with an EU ban on microplastics in mind
The increasing number of unilateral regulations on microplastics, together with the notifications of these measures under the technical measures notification procedures in the EU and WTO, have provoked questions regarding their compatibility within these regimes

Summary

| INTRODUCTION

In line with the European Union (EU) Plastics Strategy published in January 2018, the European Commission has requested the European Chemical Agency (ECHA) to prepare a dossier for restricting microplastics in certain products. Following its notification in November 2016, France has, as the first EU Member State, implemented a restriction on the use of microplastics in certain cosmetic and personal care products, the so‐called rinse‐off products for exfoliation or cleansing. France notified the World Trade Organization (WTO) according to Article 10(6) of the Agreement on Technical Barriers to Trade (TBT Agreement).. France 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 microplastics in rinse‐off cosmetic products – products that are rinsed off immediately after use – was justified with a reference to international and European obligations regarding the status of the marine environment. We discuss the issues that may arise as a result of these national bans and a possible EU ban on microplastics with.

KENTIN AND KAARTO

Product category

Not settled

| CONCLUSIONS