Ban on Plastic Microbeads: Too Narrow, or Just Narrow Enough?

• Author: Liz Michalowska
• Position: J.D. Candidate, American University Washington College of Law 2019
• Pages: 22-23

22 Sustainable Development Law & Policy

ban on plaStic microbeaDS:

too narrow, or JuSt narrow enough?

Liz Michalowska*

President Barack Obama signed the Microbead-Free Waters

Act of 2015 (MFWA) which banned plastic microbeads

in 2015.1 The MFWA specically banned plastic micro-

beads found in cosmetic consumer exfoliants that get rinsed and

released into waste-water treatment centers, which then ow into

lakes, rivers, and oceans.2 However, the MFWA does not regu-

late microbeads found in consumer products that are not rinsed

off, such as deodorants, lotions, or other non-cleansing products.

The Act also does not ban non-cosmetic microbeads, ranging

from those found in cleaning products and medical applications

to oil and gas exploration. Critics of the MFWA argue that the

ban is too narrow because it does not include all products that

contain microbeads,3 and because it does not do enough to rid

marine environments of already existing microbeads.4 This arti-

cle will argue that the federal ban is just narrow enough because

it closed several statutory loopholes created by individual state

bans before the MFWA passed.

Dened under the MFWA as tiny pieces of plastic less

than ve millimeters in diameter, microbeads, also known as

microplastics, are added to many consumer products.5 Because

of their small size, microbeads easily enter waterways through

the discharge of municipal sewage and liquid waste. The Great

Lakes, in particular, have a large concentration of microplastics.6

According to a study published in the Marine Pollution Bulletin,

the 5 Gyres Institute and State University of New York Fredonia

found that of the plastics found in the Great Lakes, microplastics

comprised 90% of the plastics. 7 Microbeads present a greater

health risk than larger plastic debris because they resemble

aquatic food, leading sh and other organisms mistakenly con-

sume them.8 Once ingested, the toxic chemicals in microbeads

can transfer into the body tissues of sh and other organisms that

are frequently consumed by humans.9

Because of Lake Michigan’s importance to Illinois, state

legislators decided to take the lead in counteracting pollution in

the Great Lakes. On June 8, 2014, Governor Pat Quinn signed

legislation to make Illinois the rst state in the nation to ban

the manufacture and sale of personal care products containing

synthetic plastic microbeads. Soon after, other states passed

their own laws banning microbeads, including New Jersey,

Colorado, Indiana, Maryland, Maine, Wisconsin, Connecticut,

and California.10 The problem with individual state responses,

however, was that there was too much room for interpretation,

and it allowed for the possibility of manufacturers nding loop-

holes in the law.

When Illinois passed its law, it banned its citizens from

manufacturing for sale and accepting for sale personal care

products containing synthetic plastic microbeads.11 The state

ban dened synthetic plastic microbeads as “any intentionally

added, non-biodegradable, solid plastic particle measured less

than ve millimeters in size, and that is used to exfoliate or

cleanse in a rinse-off product.”12 Following the Illinois ban, New

Jersey, Colorado, Maryland, Maine, Wisconsin, Connecticut,

and California (in that order) implemented their own bans,

largely dening microbeads in the same manner.13 The problem

with this denition is that the word “non-biodegradable” created

a loophole for manufacturers to add microbeads that are biode-

gradable. The denition further allowed for a broad interpreta-

tion for what biodegradable means. Without a clearer provision,

a manufacturer can produce microbeads that do technically

decompose, but take years, sometimes decades, to do so.14

To address the ambiguity, the MFWA clearly dened plastic

microbead as “any solid plastic particle that is less than ve mil-

limeters in size and is intended to be used to exfoliate or cleanse

the human body or any part thereof.”15 The federal law makes no

exception for biodegradable beads. Not only does that clarify the

denition of microbeads, but it also alleviates the need to dene

the term “non-biodegradable” found in so many state laws. In

prohibiting all microbeads, and not just non-biodegradable ones,

the MFWA takes an important step toward preventing further

microbead contamination.

Additionally, not all states prohibited the manufacturing and

accepting for sale of products containing plastic microbeads.

Only eight states prohibited the manufacture, and sometimes

the production, for sale of personal care products containing

microbeads.16 Of those, only six states included language ban-

ning the acceptance for sale of these products.17 Furthermore,

only three states included language prohibiting the offer for sale

on such products.18 The differences in language could have led

to loopholes available to those who import or simply distribute

products with microbeads. Microbeads manufacturers are gener-

ally global and develop products for the national market. The

varying and ambiguous state-by-state bans would have created

distribution and marketing challenges. Making the federal ban

this narrow was the most tting way to address the microbead

contamination of waterways because the MFWA claried what

manufacturers were authorized to do.

*J.D. Candidate, American University Washington College of Law 2019

23

Fall 2018

To further address what manufacturers and retailers could

and could not do, Congress enacted simpler language. The

MFWA prohibits “[t]he manufacture or the introduction or deliv-

ery for introduction into interstate commerce of a rinse-off cos-

metic that contains intentionally-added plastic microbeads.”19

The vital language in the legislation is the phrase “interstate

commerce.”20 The Commerce Clause grants Congress authority

to regulate commerce between states.21 “Interstate commerce”

applies to all steps in a product’s manufacture, packaging, and

distribution, so it is rare that a cosmetic product on the market

is not in “interstate commerce” under the law.22 As such, this

phrase eliminates any uncertainty regarding the manufacture

or the distribution of cosmetic rinse-off products with plastic

microbeads.

Because it eliminates uncertainty and potential loopholes,

the MFWA is an important rst step toward reducing new pollu-

tion into maritime environments. Removing existing microbeads

is difcult, so Congress used its authority under the Commerce

Clause to prevent further contamination. By focusing on what

Congress could do immediately, it created a solution to an exist-

ing problem, and it did so practically and economically. The

narrowness of the legislation works because it closed potential

loopholes industries could have exploited, and the MFWA paved

the way for keeping future microbead pollution out of our water-

ways.

enDnoteS

1

David A. Stri ing, The Microbead-F ree Waters Act of 2015: Model for

Future Environmental Legislation, or Black Swan, 32 J. lanD uSe & envtl.

l. 151, 158 (2016).

2

Sarah Kette nmann, Nationw ide Ban on Plastic Microbead s in Cosmetics,

31 nat. reSourceS & env’t 58 (2016).

3

Striin g, supra note 1, at 159, 161-62.

4

Davis Truslow, Microbeads a nd the Toxics Use Reduction Act: Preve nt-

ing Pollution at Its S ource, 44 b.c. envtl. aff. l. rev. 149, 155 (2017).

5

Id. at 149, 152.

6

Id. at 153.

7

Id.

8 Id.

9

Id. at 154.

10

Nicholas J. Schroeck, Mic roplastic Pollution in the G reat Lakes: State,

Federal, and Comm on Law Solutions, 93 u. Det. mercy l. rev. 273, 275

(2016).

11

415 Ill. Comp. Stat. Ann. 5/52.5(c)-(d) (2015).

12

415 Ill. Comp. Stat. Ann. 5/52.5(a) (2015).

13

Schroeck, su pra note 10, at 276-81.

14

Id. at 282.

15

21 U.S.C. § 331(ddd)(2)(A) (2015).

16

Schroeck, su pra note 10, at 283 (noting that only Illi nois, New Jersey,

Colorado, India na, Maryland, Mai ne, Wisconsin, and Con necticut microbead

laws have language p rohibiting the manufa cture, and sometim es production,

for sale of products cont aining microbea ds).

17

Id. (distingu ishing that only Illi nois, Colorado, Indiana , Maryland,

Maine, and Wisco nsin microbead laws includ e language banni ng the accep-

tance for sale of produ cts containing mic robeads).

18

Id. (highlig hting that only New Jersey, Con necticut, and Califor nia

include langu age banning the offer for sa le on such products).

19

21 U.S.C. § 331(ddd)(1) (2015) (amending the Federal Food Dr ug and

Cosmetic Act).

20

Id.

21

u.S. conSt. art. 1, § 8, cl. 3.

22

U.S. Food & Drug Admi n., Key Legal Concepts: Interst ate Commerce,

Adulterated, a nd Misbranded, u.S. Dep’t of health & hum an ServS. (nov. 3,

2017) https://www.fda.gov/Cosmetics/GuidanceRegulation/L awsRegulations/

ucm074248.htm#Interstate_Commerce.