A Flawed Directive
Article 5 of the EU Single Use Plastics Directive 2019/904 which entered into force on 3rd July 2021 is the most amateurish piece of legislation I have ever seen in more than 20 years practising as a lawyer. It damages the credibility of the European Parliament and the EU legislative process.
Art. 5 prohibits the placing on the market of products made from “oxo-degradable” plastic. By Art. 3(6) ‘placing on the market’ means the first making available of a product on the market of a Member State. It does not therefore apply to exporters from the EU, nor to users who use or traders who trade the product in the EU after it has been first made available on the EU market. Nor does it apply to the additives or masterbatches used to make these plastics. The Directive has no legal force at all anywhere in the world outside the EU.
If you look at the three reports to the Parliament proposing to include oxo-degradable plastics in the ban on single use plastics (the Auken report (2014) the Demesmaeker report (July 2018) and the Ries report (Oct 2018)) you notice immediately that they make no attempt to provide any scientific justification for a ban. The proposals are all based on pure assertions.
The Commission decided to test these assertions by asking their scientific experts, the European Chemicals Agency (ECHA) to investigate the matter pursuant to article 69 of the REACH Regulation. This Regulation provides a detailed procedure which must be followed before any substance can be banned in the EU, and was intended to prevent politically or commercially motivated bans. Recital 95 of REACH says: “The Agency should be central to ensuring that chemicals legislation and the decision-making processes and scientific basis underlying it have credibility with all stakeholders and the public….. The confidence in the Agency of the Community institutions, the Member States, the general public and interested parties is therefore essential. For this reason, it is vital to ensure its independence, high scientific, technical and regulatory capacities, as well as transparency and efficiency.”
After studying the matter for 10 months in 2018 and collecting a large amount of evidence from a wide variety of stakeholders, the Chemicals Agency said that they were not convinced that microplastics were formed by oxo biodegradable plastics.
However, realising that they were not going to get the answer they were expecting from the Chemicals Agency, the Parliament proceeded with the proposed ban regardless, and the Commission instructed the Agency to terminate its enquiry.
So far so bad – but it gets worse.
The Single Use Plastics Directive gives, in Recital 15, the reasons for the ban as because “that type of plastic (a) does not properly biodegrade and thus (b) contributes to microplastic pollution in the environment, (c) is not compostable, (d) negatively affects the recycling of conventional plastic and (e) fails to deliver a proven environmental benefit.
As to (a) the Parliament has never defined what it means by “properly,” and has never said what timescale for biodegradation it would consider reasonable. However, the Commission issued guidance on 31st May 2021 in which it makes clear that it does not care whether the plastic is biodegradable or not. This is bizarre. If the main reason for banning a type of plastic is because it does not biodegrade, it is contradictory for the Commission to say that oxo products are banned even if they are biodegradable.
Conventional plastics do not properly biodegrade in the open environment, and nor does a bio-based plastic proved according to EN13432 to biodegrade only in an industrial composting facility. By contrast, an oxo-biodegradable plastic proved to biodegrade in the open environment, does properly biodegrade.
As to (b) conventional plastics fragment when exposed to sunlight, and they are the principal source of microplastic pollution in the environment. By contrast, oxo-biodegradable plastics convert into waxy residues which are biodegradable. If the European Chemicals Agency is not convinced that they form microplastics, on what basis can they be said to do so?
As to (c) conventional plastics are not compostable, but oxo-biodegradable plastics have been independently tested according to ISO 14855, and also in real-world industrial composting, and found to be compostable. In any event no reason is given as to why compostability should be an essential attribute of plastic. The absence of compostability does not pose a threat to human health or the environment and indeed plastics have no useful role in the composting process – see Composting
As to (d) it is well known that bio-based plastic will contaminate a recycling stream if not separated from ordinary plastic, but many thousands of tonnes of oxo-biodegradable plastic have been safely recycled for many years without separation. See also Recycling
As to (e) conventional plastics and bio-based plastics do not deliver a proven environmental benefit if they escape into the open environment, but if an oxo-biodegradable plastic is proved to biodegrade in the open environment and reduce the overall burden of plastic pollution, it delivers an obvious environmental benefit.
“Oxo-degradation” is defined by the EU Standards experts (CEN) in TR15351 as “degradation identified as resulting from oxidative cleavage of macromolecules.” This describes plastics, which abiotically degrade by oxidation in the open environment and create microplastics, but do not become biodegradable, except over a very long period of time. By contrast, “Oxo-biodegradation” is defined by CEN as “degradation resulting from oxidative and cell-mediated phenomena, either simultaneously or successively”.
Instead of using the scientifically accurate definition of oxo-degradation, the EU Parliament has invented its own definition which has caused confusion. In Art 3(3) of the SUP Directive oxo-degradable plastic is defined as “plastic materials that include additives which, through oxidation, lead (i) to the fragmentation of the plastic material into micro-fragments or (ii) to chemical decomposition.”
The definition in Art. 3(3) has caused confusion because it bears no relation to the reasons for the ban given in Recital 15 (except point (b)). It focusses only on (i) micro-fragments and (ii) chemical decomposition.
As to (i) it is well known that conventional plastics often contain additives which cause them to oxidise and fragment into microplastics. The definition in Art 3(3) does not say that the additives must have been deliberately added for the purpose of causing oxidation, and it could therefore apply to a wide range of conventional plastics.
As to (ii) there is no reference to chemical decomposition in Recital 15, and no reason has been given as to why chemical decomposition of a plastic would pose a threat to human health or the environment so as to justify a ban, unless it created microplastics. In fact if chemical decomposition occurred, and caused the material to become biodegradable in the open environment, that is actually a benefit.
As to whether the Art 3(3) definition applies to oxo-biodegradable plastics, the key question is therefore whether they can be proved to form microplastics. As already mentioned, if the European Chemicals Agency is not convinced that they form microplastics, on what basis can they be said to do so? In any prosecution for breach of Art 5 this would have to be proved not just on the balance of probabilities but beyond reasonable doubt.
In their Guidance Note of 31st May 2021 the Commission says that the Art. 5 ban applies to oxo-biodegradable as well as oxo-degradable plastic, but for the reasons mentioned above the guidance is not consistent with the text of the Directive and is contradictory. In any event, the Guidance Note is only the opinion of the Commission and is not binding on member-states or the courts.
The legality of the Article 5 ban is currently under challenge in the General Court of the EU (Case T-745/20) in an action for compensation for the damage it has caused. National governments should make it clear that they will not take enforcement action until the decision of the court is known.
An article in The Bangkok Post (7 Jun) shows that the Federation of Thai Industries does not understand the difference between oxo-degradable and oxo-biodegradable plastic. The Oxo-biodegradable Plastics Association (OPA) would be happy to provide an online seminar for them.
Oxo-degradable plastic is ordinary plastic, which breaks down into small fragments when exposed to sunlight, and this is the source of most of the microplastics found in the environment. The problem with these fragments is that their molecular weight is too high for biodegradation, so they will lie or float around for decades. Faced with this problem scientists in the 1970’s found a way to reduce the molecular weight rapidly by oxidation, and they called it oxo-biodegradable plastic.
Ordinary plastic is made oxo-biodegradable by including a catalyst in a masterbatch package at the extrusion stage. Thai factories are already doing this at little or no extra cost, and are providing a major benefit for the environment. In order to be sure that the plastic will biodegrade, they should be careful to source the masterbatch from a member of the OPA, who will be able to prove that their technology has been independently tested according to ASTM D6954.
The Thai Federation is also concerned about plastic which cannot be recycled, so they should stop using bio-based plastic. It is well known that bio-based plastic will contaminate a recycling stream if not separated from ordinary plastic, but oxo-biodegradable plastic has been safely recycled for many years without separation.
I noticed an article in the Pakistan Observer by Anam Ejaz, an environmental campaigner. She correctly identifies the harm caused by plastic waste which escapes into the environment – as it does in very large quantities in Pakistan despite the efforts of campaigners like Anam.
Her remedy is to call upon the 225 million people of Pakistan to refuse plastic, but this is obviously unrealistic. Plastic is essential to their everyday lives, and especially to the poorest among them. Plastic packaging is the best way to protect their food, water, and other products from damage and contamination, and to reduce food-wastage and the spread of disease – especially as it is now possible to make plastic anti-microbial with d2p technology.
A much more realistic remedy is to stop using ordinary plastic, and change to oxo-biodegradable plastic which will be bioassimilated and cleaned out of the environment much more quickly if it does escape.
Michael Stephen is a lawyer and was a member of the United Kingdom Parliament, where he served on the Environment Select Committee. When he left Parliament Symphony Environmental Technologies Plc. attracted his attention because of his interest in the environment. He is now Deputy Chairman of Symphony, which is listed on the AIM market of the London Stock Exchange, and is the founder and Chairman of the Oxo-biodegradable Plastics Association.
Earlier Postings in this Column
- 1/ 1/ 20 – Plastiphobia, Microplastics and A Throw-Away Society
- 7/ 1/ 20 – Recycling, Lab Testing, Bangladesh and the Right Bioplastic
- 14/1/20 – Plastiphobia and Bioplastics Definitions
- 21/1/20 – Composting, the European Union and Unemployment
- 30/1/20 – Plastiphobia, Malaysia and a Case Against Compostables and Paper
- 7/02/20 – Coronavirus, MPs Letter, Montreal, Australia and the Dominican Republic
- 14/02/20 – Oman, MacArthur Foundation, Stifling Innovation, South Africa and Compostable Plastics
- 24/02/20 – Serbia, India, Pakistan and European Bioplastics
- 03/03/20 – Plastic To Protect Health and Common Sense on Plastic
- 10/03/20 – Plastiphobia, Singapore, Compostable Plastics, Doorknobs and Carbios
- 17/03/20 – Greening our Way to Infection, Defra Warns Against Bioplastics and Montreal
- 24/03/20 – Ditch the Plastic Bag Ban and Inn-Probio
- 01/04/20 – The Come Back of Plastic Bags, Compostable Plastic Not Wanted and EASAC
- 16/04/20 – Coronavirus and Agricultural Plastics
- 11/05/20 – Coronavirus, Peru, Barbados and Recycling
- 18/05/20 – Say No to Plastiphobia, False Descriptions and the Recycling Myth
- 02/06/20 – Definitions and More Setbacks for Plastiphobia
- 11/06/20 – BBIA, Food Waste and Testing of OXO-Biodegradable Plastic
- 19/06/20 – Oxo Biodegradation, Independent Reports and Precautionary Principle
- 29/06/20 – Banana Republic, Why Turn Plastic into CO2 and Plastic Waste from Ships
- 13/07/20 – Running Scared, The Daily Telegraph and Market Report
- 20/07/202 – Tipa, Plastics Today and The American Genius
- 27/07/20 – Coronavirus, Plastic Litter, Bahrain and Polymateria
- 17/08/20 – Plastics Europe, Confusing Issues and Paper
- 25/08/20 – Professor Emo Chiellini, Plastics Today, Greenwashing and Coronavirus
- 28/09/20 – Kill the Virus, Marine Degradation, Airports, Brazil Retail, Plastic Growth and Face Mask
- 08/10/20 – Compostable vs Biodegradable, Covid 19 and New British Bioplastic Standard
- 27/10/20 – Power of Lobbying, Paper and Cotton Worse than Plastic
- 02/11/20 – Covid 19 and Five Myths About Plastic
- 09/11/20 – Support for OXO BIO, Westminster Forum, Euractiv and Covid
- 23/11/20 – Toxicity of Bio-based and Biodegradable Plastics, and Covid Scaremongering
- 15/12/20 – Recycling and An Article from Austria
- 21/12/20 – EU Scientific Advisers, China Chose Wrong Bioplastics and Covid Nonsense
- 05/01/20 – EU, Covid Lockdowns, WRAP, British Standards Institution and Polymateria
- 12/01/21 – Intertek and Composting
- 19/01/21 – Recycling and Exporting Plastic Waste
- 22/02/21 – Seaweed Plastic, Orange Peel and Xampla
- 02/03/31 – OXO Biodegradable Plastic
- 08/03/21 – EU Scientific Reports and Paper vs Plastic
- 15/03/21 – India, Australia and Dow Chemicals
- 14/04/21 – Oxomar, UK Government and Microplastics
- 26/04/21 – Plastic to the Rescue of Covid and More News from Brazil
- 04/05/21 – Packaging Digest
- 07/06/21 – Minderoo Report and Korea Herald
- 30/06/21 – Recycling, Is the Use of Biobased Plastics Increasing, Confused Australians and Biodegradable Future (FREE)
Interview with Michael Stephen
The opinions expressed here by Michael Stephen and other columnists are their own, not those of Bioplasticsnews.com.