Microbeads: An environmental challenge for the FMCG industry

It is alleged that the microbeads used in personal care products are primarily made of polyethylene but could also be made of polypropylene, polyethylene terephthalate, polymethyl methacrylate and nylon. Due to their small size they are believed to even escape the filtration systems of the effluent treatment plants.     

International status

Plastic microbeads have been the subject of protests from environmental activists across the world. While they have been banned in a few jurisdictions, they are in the process of being completely phased out in some others.   

  

The US has banned the production of personal care products and cosmetics containing plastic microbeads from July 2017 through the Microbeads-Free Waters Act 2015. The country plans to ban the sale of products containing microbeads from July 2018 and over the counter drugs containing plastic particles by 2019. 

Canada, due to the growing concerns and evidence of the plastic accumulating in lakes and rivers, harming the environment and aquatic life, has labelled microbeads as a toxic substance thereby paving the way for its regulation. The government has proposed forbidding the manufacture and import of personal care products containing microbeads by the end of 2017 and a ban on the sale of such products by the end of 2018. 

The UK has expressed its commitment and plans to ban microbeads in 2017 for which the consultation process is yet to begin. Some UK companies have already expressed their voluntary commitment to phase out microbeads from their products by 2020. However, there are concerns that a ban on microbeads may restrict the free movement of goods and therefore violate the EU law. 

New Zealand has proposed that the companies voluntarily phase out microbeads from their products, failing which they will ban microbeads and impose heavy fines on violators. Australia has proposed to phase out microbeads from its products by July, 2018. European countries like Netherlands, Austria, Luxembourg, Belgium and Sweden are also planning a ban on the use of microbeads in various products.  

Legal framework in India

India does have pollution control laws but it does not specifically regulate the use of microbeads in various products. Under the existing law, we regulate the management of plastic waste and work towards its minimisation through the Plastic Waste Management Rules, 2016 (Rules). 

The Rules define ‘plastic’  to include “any material which contains as an essential ingredient a high polymer such as polyethylene terephthalate, high density polyethylene, vinyl, low density polyethylene, polypropylene, polystyrene resins, multi-materials like acrylonitrile butadiene styrene, polyphenylene oxide, polycarbonate, polybutylene terephthalate”. Microbeads, as explained above, are made of substances which fall within the definition of plastic under the Rules.  

The Water (Prevention and Control of Pollution) Act, 1974 (Water Act) in section 24(1)(a) provides that “no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any stream or well or sewer or on land”. Therefore, use and discharge of microbeads in the water bodies may very well qualify as an act in contravention of the Water Act, if they are recognised as a pollutant under the Indian law.   

Section 26A of the Drugs and Cosmetics Act, 1940 (Drugs Act) provides for the powers of the Central Government to prohibit manufacture etc of drug and cosmetic in public interest. The provision reads as “Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied, that the use of any drug or cosmetic is likely to involve any risk to human beings or animals or that any drug does not have the therapeutic value claimed or purported to be claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do, then, that Government may, by notification in the Official Gazette, prohibit the manufacture, sale or distribution of such drug or cosmetic.” 

Under the Drugs Act, the Central Government has the power to prohibit the manufacture, sale or distribution of drugs and cosmetics which pose a risk to human beings or animals. Therefore, once it is established in India that the microbeads contained in the cosmetic products are a risk to human beings and animals as has been established in various jurisdictions, chances are that such cosmetic products containing microbeads may be banned in India as well. 

Application pending before the NGT

An application has been filed before the Principal Bench of the National Green Tribunal (NGT) at New Delhi in 2016 seeking a complete ban on the usage of microbeads in the manufacture, import and sale of various cosmetic or personal care products. The applicant in the aforesaid application has also prayed for imposition of heavy fines and penalties on companies which are causing environmental pollution by using, manufacturing, importing and selling various cosmetics and personal care products containing microbeads. The applicant in the aforesaid application has argued that the use of microbeads in various products is posing a serious threat to the humans and aquatic fauna. 

The NGT has directed the Central Drugs Standard Control Organisation to test and analyse the products containing microbeads in its laboratories and submit its report. Notices have been issued to the concerned parties. The concerned ministries and statutory bodies have not taken an official stand on this issue yet.   

Final comments

With increasing protests against the use of microbeads in the manufacture of cosmetic products across the world, the issue has gained prominence in the last couple of years. In India, the application currently being heard before the NGT is probably the first matter which relates to the issue of microbeads. While the concerned authorities are still trying to figure out their stand on the issue, chances are that the interests of companies dealing with the sale and manufacture of products containing microbeads in India may be adversely affected in case the use of microbeads is prohibited in India. 

“Environmental pollutant” has been defined under section 2(b) of the Environment (Protection) Act, 1986 to mean any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment. So, even if microbeads are not specifically recognised as a pollutant and there is no specific legal provision to address it, it could be very well covered under the existing legal framework if established to be injurious to environment. If the NGT, or any other court passes an order recognising microbeads as a pollutant, chances are that it might have a significant potential impact on the industry. 

It is possible that like other international jurisdictions, the usage of microbeads could be completely banned in India and a timeline may be given to the industries to completely phase out microbeads from their products. Taking a cue from the international developments, it may be a good idea for industries to consider finding alternatives to the usage of microbeads in their products as the issue poses potential business risks due to chances of closure orders being issued and fines being imposed on violators. It could unnecessarily lead to negative publicity for the affected brands.   

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Nawneet Vibhaw and Sanjeev Kapoor work as partner at Khaitan & Co