There has been an emerging trend recently of Environment and Climate Change Canada (ECCC) compliance and enforcement (C&E) activities related to microbeads in certain cosmetic/personal care products.
Compliance and Enforcement
A number of members have notified CA Canada of recent compliance and enforcement (C&E) outreach visits by ECCC Compliance officers citing concerns with exfoliating and cleaning products that have been randomly sampled and tested from the marketplace (using a ECCC testing protocol) that they believe contain plastic microbeads, and therefore may be in contravention of the Microbeads in Toiletries Regulations (2017).
A reminder to our members:
Under these Regulations:
- The manufacture and import of toiletries (cosmetics) that contain microbeads have been prohibited since July 1, 2018
- The manufacture and import of toiletries (drugs/natural health products) that contain microbeads have been prohibited since July 1, 2019
- These prohibitions are subject to the definition of ‘microbeads’ as outlined in Regulation (see below)
At present, the compliance and enforcement actions appear to be specific to exfoliating and cleansing products that have polyethylene listed on the label. Following analysis using the above-referenced testing protocol, officers appear to be visiting members with considerations to issue Environmental Protection Control Orders (EPCOs) under circumstances where their testing has revealed the presence of solid plastic particles in accordance with the definition of microplastics as outlined in the analytical test method (ECCC Test Method 623.1 revised, Oct 16, 2020). This test method is a revised version of the draft microplastic test method (Method 445.0) that CA Canada shared with members in 2017 that ECCC released for stakeholder input as the Microbeads in Toiletries Regulations was first registered. Recall that CA Canada expressed concerns with the generic nature of this method and provided commentary on the method outlining that this method would potentially capture more than just the targeted microbeads as presently considered in scope of these Regulations. To our knowledge, this test method has not been formally shared with stakeholders prior to these actions.
The key elements of the microbeads as defined under Schedule 1 of CEPA, the Microbeads in Toiletries Regulation, and the US Microbeads Free Waters Act, are:
- Size range
- Solid plastic beads/particles
- Intended to exfoliate or cleanse
Of note, these core elements are clearly very different to those that appear to be driving the on-going compliance and enforcement action, per above; and may be important considerations that members may wish to explore.
RECOMMENDATIONS AND NEXT STEPS
- Members should be prepared for C&E visits if you have exfoliating and cleansing products that may contain polyethylene, even if solubilized or in a liquid or wax form.
- Any C&E action should be predicated on the basis that the substance meets the regulatory definition of the ‘microbeads of concern’ that is intended to be in scope of the Regulation (not simply the definition in the science summary or the revised ECCC analytical test method 623.1)
- Be prepared to share evidence addressing the form of the substance in formulation (i.e., solid vs. not solid) and functionality, per key definitional elements as outlined above
- Show that you are aware of the Regulations and be prepared to ask officials to share test methods and any pertinent analytical results that support any assertion that the substance in question is allegedly in/out of scope
- Undertake a more extensive review of your raw material portfolios to understand potential implications of the European Developments as an early signal of regulatory pressures that may be coming to the fore as the European Microplastics Restrictions is finalized and comes into force.
- CA Canada will be monitoring developments and looking to engage with any possible expansions in regulatory activities in Canada beyond the current microbeads scope, as presently focused.
- Inform CA Canada as to any follow-up or visits that you may experience regarding with this microbeads blitz, as appropriate.
