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Photo Credit: Creative Commons

Photo Credit: Creative Commons

Written by Brendan Terry, 5 Gyres Ambassador

The Microbead-Free Waters Act of 2015 has been introduced in the House of Representatives and now, with many state legislatures adjourned, there is time to focus on making it and other future bills strong both through continuing pressure by passing more exemplary laws from the active state legislatures (e.g. California) and by recognizing the lessons to be learned from each bill.

At this point, eight states have enacted into law legislation phasing out synthetic plastic microbeads and four more have microbead legislation pending. Half a dozen other bills have been stopped in their tracks by stiff opposition from either industry players or environmental groups. (All present bills and laws are summarized in a reference table below.) Even though the situation is complicated, it can be distilled into a few “lessons learned.” These lessons will be useful guides for defining parameters of future legislation that can pass and strengthen the protections against plastic microbead pollution.

Lesson 1: Strong Bills Can Pass

Strong bills without loopholes are beginning to pass into law and make up lost ground against the early laws whose language can be exploited. When microbead legislation first got started, legislators had to write bills that made huge compromises with industry just to get passed, thereby effecting little change. Jennifer Walling, the Director of the Illinois Environmental Council (Illinois passed the first microbead legislation in the country), conceded that, “In the end, we were trying to get something that would pass. Other states should try for more stringent standards.” That is exactly what is starting to happen. Connecticut and Maryland have recently passed microbead laws that do not have loopholes; these laws demonstrate that in the evolved political climate solid microbead legislation can now be passed.

Lesson 2: Environmental Groups Are Willing to Negotiate

The Connecticut and Maryland laws both comprehensively ban microbeads currently on the market by 2020. In return, industry is given the opportunity to introduce new materials (proven biodegradable in a marine environment by an independent 3rd party) to replace the plastics in current microbeads. In these two states, the combination of a gentle phase-out and the option to introduce new materials will allow product manufacturers to cycle in their new products as efficiently as possible.

Microbeads

A trawl sample of microbead and microplastics (Source: 5 Gyres)

In California, environmental groups are using the tactic of trading exemptions for loopholes. If passed, Assembly Bill 888 would only ban the sale of personal care products with microbeads, whereas the sale of over-the-counter drugs would be exempted. The manufacturing of both types of products in California would also be exempted from the ban. This makes it far easier for companies to adjust because replacing ingredients (i.e. microbeads) in over-the-counter drugs is a much more regulated and complicated process than swapping ingredients out in personal care products such as face wash. Nevertheless, this Bill would have a huge ameliorative effect on the marine environment because it bans all microbeads (with no loopholes) in personal care products, which dwarf over-the-counter drugs by volume.

Lesson 3: Some Things Take Time

Publicly-traded corporations that use microbeads need enough time to phase them out in ways that uphold their financial responsibilities to their shareholders. All of the bills that have passed thus far have passed with the same conservative timeline, whereas the bills that are not moving have accelerated phase-outs.

Lesson 4: “Biodegradable” Means What You Say It Does

By far the most common loophole seen in weak microbead legislation has been the inclusion of the term “nonbiodegradable” in the definition of a “synthetic plastic microbead.” In some weak bills (eg. the Illinois Bill), “biodegradable” isn’t even defined and is therefore effectively meaningless. In other weak bills, “biodegradable” is defined such that a microbead has to be able to decompose in an industrial composting facility, which is kept at a very high temperature with controlled pH. Microbeads that merely meet this standard do not meet the standard of biodegrading in an aquatic environment (i.e. where they actually end up). Luckily, there is a simple solution that states such as Maryland have used: define “biodegradable” as something that decomposes in a marine environment (where microbeads from Maryland end up); in other words, strong bills define “biodegradable” using common sense.

The takeaway from all these lessons, for both a national bill and future state bills, is that environmental groups are willing to negotiate on many details of microbead legislation as long as industry is prepared to close the loopholes. Industry requires time and flexibility to make changes without negatively impacting customers and shareholders; environmental groups need stringent enough regulations to protect the Earth for future generations. Ultimately, the fairest solution is a strong bill, with clear guidelines and no loopholes, that will level the playing field for companies already doing the right thing with Green alternatives.

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(This article originally appeared on 5 Gyres. It has been reprinted here with permission.)

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