Oxo-biodegradable Plastics – EU Compliance
In making the SUP Directive 2019/904 the EU Parliament caused confusion by failing to distinguish clearly between oxo-degradable and oxo-biodegradable plastic.
We have examined the EU Commission’s Guidelines (C 3762) of 31st May 2021 on the interpretation of the Directive, and have concluded for the following reasons that they are mistaken.
The Guidelines say “Article 5 of the Directive ….. makes no distinction between oxo-degradable plastic that is biodegradable and oxo-degradable plastic that is not biodegradable.” This is true – because Article 5 does not mention biodegradable plastic at all. That does not however mean that oxo-biodegradable plastic does not exist.
Its existence is recognised by CEN TR15351, wherein:
(a) “Oxo-degradation” is defined as “degradation identified as resulting from oxidative cleavage of macromolecules.” This describes ordinary plastic, (which does not contain an intentionally-added prodegradant catalyst). It will abiotically degrade by oxidation in the open environment and create microplastics, but does not become biodegradable except over a long period of time.
(b) By contrast “oxo-biodegradation is defined as “degradation resulting from oxidative and cell-mediated phenomena, either simultaneously or successively”. This means that the plastic (which does contain a prodegradant catalyst) degrades rapidly by oxidation until its molecular weight is low enough to be accessible to bacteria and fungi, who then recycle it back into nature.
Recital 15 of the Directive provides that “The restrictions on placing on the market introduced in this Directive should also cover products made from “oxo-degradable” plastic, as that type of plastic does not properly biodegrade and thus contributes to microplastic pollution in the environment.” It follows from this that a type of plastic, (such as d2w biodegradable plastic), which is scientifically proved to properly biodegrade and not create microplastics, is not “oxo-degradable” plastic for the purposes of the Directive, and the Guidelines are therefore in conflict with Recital 15. The quality of biodegradability is an essential characteristic.
Not only are the Guidelines mistaken, but they are not legally binding, and were written without the benefit of later scientific evidence, including in particular the French “Oxomar” study, which proved that oxo-biodegradable plastics biodegrade in seawater and do so with a significantly higher efficiency than conventional plastics. See www.biodeg.org/wp-content/uploads/2021/07/Final-report-OXOMAR-10032021.pdf
One of the purposes of the SUP Directive is to reduce the amount of single-use plastic products, and especially those commonly found on beaches. That is why the Directive contains a list of such products, which are banned whether they are oxo-degradable or not. There was no reason to add any restriction which could apply to oxo-biodegradable plastic products, for if they are single-use products on the list they are banned anyway. There is no evidence that oxo-biodegradable plastic products not mentioned on the list have ever been found on beaches, and it is clear that it is better for Europe’s environment for plastic to be made so that it quickly biodegrades leaving no toxic residues, instead of lying or floating around for decades and creating microplastics.
The Directive had been challenged by Symphony Environmental in the European Court in Luxembourg, because the confusion caused by the Directive had affected its business and Symphony claimed compensation. The court did not say that the EU had made a correct assessment of the technology, but it refused to award compensation simply because it held that the legislators had not exceeded the limits of their discretion.
This was a surprising conclusion, as the legislators had not followed the procedure prescribed by the REACH Regulation Arts 68-73; had failed to make an environmental impact assessment or socio-economic analysis; had failed to await the results of a scientific study being done at the time by the European Chemicals Agency; and had prematurely terminated that study. On 30th October 2018 the Agency said that they had not been convinced that microplastics were formed.