Minister Simon Coveney - Prohibition of Micro-Plastics Bill 2016
At the outset, I wish to acknowledge Deputy Sherlock’s intentions and his motivation in developing and bringing forward this legislation to address the important issue of micro-plastics. I appreciate his strong concern and his commitment in this legislation to protecting and enhancing our marine environment. I can assure the Deputy that I also care passionately about these issues. Today presents a further opportunity for this House to add to the debate in the Seanad on these issues last November.
While I share the same vision and end point as Deputy Sherlock there is still a considerable amount of technical and legal work to be advanced before the appropriate legislation can be brought before the Oireachtas. It is for this reason that I am proposing that the second reading of this Bill be declined.
As I am sure the Deputy is aware, I gave a commitment in the Seanad last November to legislate to prohibit the sale or manufacture of certain products containing microbeads including cosmetics, body care and cleansing products and detergents and abrasive surface cleaning products. This is a much wider scope than envisaged by the Bill the Deputy proposes. It is intended to include these provisions in legislation which will also provide the legislative basis for a network of marine protected areas as required by the Marine Strategy Framework Directive and make necessary amendments to the Dumping at Sea Acts.
At that time, I committed to writing to Commissioner Vella to inform him we would be drawing up such legislation and that we would be seeking a formal derogation for EU market rules in order to do this. This letter has been sent and Commissioner Vella has responded. My officials are currently working on this legislation.
I believe that any legislation relating to microbead prohibition will stand or fall on the strength of the definitions of microbeads, plastics and the identification of the ranges of products to be covered by the legislation. At this time, there is much highly technical debate nationally and internationally as to how exactly to define microbeads and also what constitutes plastic. My Department is working both with national experts and has consulted with international experts to help us develop a water-tight and workable definition to reduce, as far as practicable, the possibility of unintended consequences and to ensure that our legislation is comprehensive, robust and future-proofed for the purposes of a robust and future proofed marine environmental programme. They have met with the OSPAR Commission, EU member states including the UK, Germany, and Belgium, with eNGOs such as Seas at Risk and with industry representatives such as Plastics Europe and Cosmetics Europe and are examining other technical approaches being undertaken internationally by the USA, Canada, the UK and France on this matter.
What is emerging is that there is little consensus on the definition of microbeads and that the definition of ‘plastic’ for that matter, so whatever legislation is put in place will require very considered work with technical expert input on its definitions to ensure it fit for purpose, including such matters as the important difference between the technical terms “microbeads” and “microplastics”.Otherwise, any legislation brought forward could have a myriad of unintended consequences. I have no doubt that the Deputy can understand my concern that these definitions, which will underpin this legislation, are correct and will ensure both the robustness and effectiveness of the legislation.
It is also important that the scope of the legislation relates to products where there is an identified pathway by which microbeads contained in them may enter our riverine and marine environments.At this time, the only clearly identified pathway relates to products that are rinse-off.
The microbeads they contain are washed into wastewater systems and may reach the environment through them.Not all cosmetic products containing microbeads are considered as having such pathways at this time.
Given the scale of the technical work involved, and the importance of achieving the correct outcomes, I consider that the present Bill before the House, while I commend the Deputy for developing it, presents a number of difficulties.These relate to both the scope of the Bill and potential unintended consequences, in particular:
- the definitions contained in the Bill are not adequate or appropriate for legislation of this type; and
- no provision is made for powers of investigation or enforcement, which would make the proposed approach unworkable and unenforceable.
Most importantly, it is my belief based on preliminary legal advice, that the enactment of this Bill would place Ireland in breach of articles 34 and 35 of the Treaty of the Functioning of the EU, which relates to the principle of ‘free movement of goods’ and Directive (EU) 2015/1535 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (codification). The EU’s analysis, consultation and notification requirements of Member States who wish to seek an exception to this principle on environmental grounds have not been met. European Court of Justice rulings and Commission guidance place a burden of proof on Member States to justify any restriction on the free movement of goods. They require that a proper formal justification be made with evidentiary support. Indeed, Commissioner Vella in his response to my letter specifically stated that he looks forward to seeing Ireland’s evidence justifying such a ban.
I recently undertook a public consultation process in relation to the legislation I am drawing up to prohibit the manufacture and sale of certain products which contain microbeads. I was impressed by the volume of over 3,000 submissions received in the process which my officials are currently assessing. This follows on from the useful debate in the Seanad last November, and I am sure the debate in this House will add to the evolving policy.
Following this public consultation process, further dialogue with stakeholders and experts will be necessary in advance of our lodging of our justification for a derogation under single market rules and formally notifying the EU Commission of our intentions, as required. However, the results of the public consultation will streamline this dialogue which I hope to advance quickly.
I wish to reassure the House that that both I, as the Minister responsible for marine environmental protection, and the Government generally, recognise that microbeads used in cosmetics, body care products generally, and also other products such as detergents and scouring agents are potentially harmful to our riverine, transitional and marine environments. Indeed, Ireland holds a formal position that we wish to see microbeads banned throughout the European Union. Even though we are working on our own national legislation, I intend to continue to actively campaign for an EU wide ban on microbeads and work collaboratively with the European Commission and other member States to achieve this. Indeed, earlier this week, I responded positively to a request from the Swedish Environment Minister to join a commitment by a number of countries to ban micro beads.
Over recent years, scientists, experts and policy makers have become increasingly concerned about the levels of waste, or marine litter, ending up in our seas and oceans. As Deputies are aware, it can be found in every aspect of the marine environment and ranges in size from large objects such as fishing nets or shipping containers to micro- and nano-litter particles – i.e. particles of smaller than 1mm in diameter and smaller than 0.05 mm respectively. However, the extent of the marine litter problem and the harm it causes to the environment are not yet fully understood and are subject to on-going extensive research. Nonetheless, it is clear that this is an issue that we need to address, at the very least, under the precautionary principle. Marine litter also causes socio-economic harm, such as affecting tourism and consumer confidence in seafood.
Plastic is a particular problem for the marine environment. Due to its buoyancy, it can easily be washed down rivers, blown offshore or collected by the tide from the shore as well as being dumped or lost directly into the seas from ships and fishing boats. It does not biodegrade and persists in the environment for a very long time. It can breakdown into secondary micro-plastic particles through erosion and there is evidence to suggest that both large plastic items and microplastics are being ingested by marine fauna with undetermined consequences both for them and for creatures higher up the food chain who eat them in turn – including ourselves.
While much of the marine microplastic litter is created through the erosion of larger pieces, microplastics are also entering the marine environment in other forms such as micro-fibres from artificial materials worn off clothes by washing, for example.
However, a certain amount of marine microplastic litter is caused by plastic microbeads which are used in cosmetics; body care and cleansing products; and detergents and surface cleaning agents entering the marine environment via wastewater discharges into rivers and estuaries. Such microbeads cannot be easily removed by treatment of wastewater.
Whereas, I acknowledge that microbeads represent a fraction of the microplastic litter entering the marine environment, they are a particularly pernicious product as they are “ready-made” microplastics and cannot be removed once they reach it. Microbeads could not be regarded as a major human necessity; they are often present merely for decorative purposes. Also, where microbeads are used as exfoliating or scouring agents, a wide array of established safe and biodegradable organic particles or natural mineral alternatives are readily available.
The relevant industries are fully aware that the tide of international opinion is turning against the use of microbeads on account of their potential to cause harm to marine ecosystems. They are already banned in Canada and the US. The UK and French prohibitions are due to come into effect later this year. A number of other EU States, of which Ireland is one, have formally stated that they seek a similar microbeads prohibition across the EU. Thus, industry is already turning to other alternatives.
Research on the topic of harm caused by marine litter is at an early stage of development and my Department is actively participating in studies both at nation and international level to identify the level of waste in the marine environment, the harm it does and the primary input sources. This will advance the science knowledge base in this area and inform future public policy in the matter.
In addition, my Department invests significant resources in world leading citizen activation and awareness raising programmes such as Clean Coasts and related programmes, as well as the Green School’s Marine Environment module. We will continue to attempt to have a positive influence on societal behaviour in relation to matters concerning the marine environment.
In conclusion, I would like to reassure the House that this Government recognises that there is a need to prevent microbeads from entering the environment through wastewater. I recognise that this can only be realistically achieved by a prohibition on their use in cosmetics and other body-care products. However, I also wish to see them removed from detergents and scouring agents, which the Bill as presented does not allow for.
While Ireland wants an EU wide ban, I see the value of a national prohibition in the interim. However, this has to be done within the context of EU rules on free movement of goods. Also, it requires strong legislation with robust definitions and proper investigative and enforcement provisions being provided. As the Deputy is aware, I am committed to doing this and I am in the process of drawing up legislation to achieve this. As the Private Members Bill, as proposed, does not meet these requirements but accepting the bona fides of the Deputy on this issue, I regret that I cannot support it.
I urge the house to support my amendment, which reaffirms my commitment to develop legislative proposals taking on board the necessary notifications required to the EU and the World Trade Organisation, as well as continuing work to heighten public awareness on this issue and support relevant research.