OPA Comments on European Union

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In the Single-use Plastics Directive 2019/904 (effective 2nd July 2019) the EU has introduced various measures for reducing the quantity of plastic goods being produced, and measures for encouraging redesign, and collection for recycling. Member states have two years to bring these changes into law in their countries.

Despite those measures, plastic waste will still escape into the open environment for the foreseeable future in unacceptable quantities, even in Europe. Last year 600,000 tons of plastic waste escaped into the Mediterranean Sea. The situation is even more alarming at global level, with 8 million tonnes ending up in the oceans each year.

This is why oxo-biodegradable plastic was invented. It does NOT just break up into tiny pieces, and nobody would want to buy or sell this technology if it did. No, it converts much more quickly than ordinary plastic into biodegradable materials, which can be recycled back into nature by bacteria and fungi, who sequester the carbon content to build their own cell structure.

Oxo-biodegradation does not need special conditions, as only oxygen and bacteria are required, and these are abundant in the open environment. Sunlight will accelerate the process, but is not essential. Bio-degradation in landfill is not necessary, and would generate methane, which is a powerful greenhouse gas.

Directive 2019/904 (see Recital 15) is intended to ban plastic that “does not properly biodegrade and thus contributes to microplastic pollution in the environment, is not compostable, negatively affects the recycling of conventional plastic, and fails to deliver a proven environmental benefit.” However, there is solid scientific evidence that d2w oxo-biodegradable plastic does properly biodegrade, does not contribute to microplastic pollution, is compostable, and does not negatively affect the recycling of conventional plastic. For an independent review of the scientific evidence see: www.biodeg.org/2018/11/06/uk-judge-find-the-case-for-oxo-biodegradable-plastic-proven/

There is a well-established procedure in the EU for deciding whether substances should be restricted, which is set out in the REACH Regulation 2006/1907.  In December 2017 the Commission acted under Article 69 to ask the European Chemicals Agency (ECHA) to study what they called “oxo-degradable” plastics, because the Commission thought that they created microplastics, but on 30th October 2018 (ten months into the study) ECHA advised that they were not yet convinced that microplastics were formed.  The Commission then terminated ECHA’s enquiry.

If, and only if, ECHA had recommended a restriction, supported by a scientific dossier under Annex XV, it would have had to be considered by two committees under Articles 70 and 71, and there would have had to be a public consultation under Art 71(1), before any restriction could be proposed under Art. 73. None of this has been done, and there is no scientific justification from the EU’s own scientific experts for any restriction. We are therefore advised that any restriction would be legally invalid and unenforceable.

Never before has an ECHA investigation been circumvented by legislation, and if this is allowed to stand it would set a very dangerous precedent.

The EU may think that they had sufficient scientific evidence, but that is not the point.  Their opinion has to be tested by the procedures laid down in Arts. 68-73 of REACH, and stakeholders are entitled to the benefit of the safeguards set out in those Articles.  It is important to note that the January 2018 report by the Commission did not call for a ban – it called for an investigation by ECHA.  Moreover, the proposal for the Directive sent to the Parliament by the Commission did not include a proposal for a ban.

As to the “precautionary principle” the Commission stated in February 2000 that “The implementation of an approach based on the precautionary principle should start with a scientific evaluation, as complete as possible, and where possible, identifying at each stage the degree of scientific uncertainty.” http://europa.eu/rapid/press-release_IP-00-96_en.htm  That is exactly what the Commission did, but then terminated the evaluation.

In addition to the REACH Regulation, in 2016 the European Parliament and Council committed  to impact assessments for any substantial amendment made to Commission proposals, but no such assessment was done for this amendment.  It is plausible that an assessment was not requested due to the then ongoing evaluation being carried out by ECHA, but this evaluation was terminated.