In May 2014, the New York State Assembly voted 108 to 0 to pass a bill to prevent the discharge of plastic microbeads into state waters.  According to New York Attorney General Eric Schneiderman, who pushed the bill through the Assembly, the Microbead-Free Waters Act (Bill A8744A) was the first legislation in the nation that would ban the use of microbeads.

But, on June 8, 2014, Illinois beat New York to the statutory finish line when Governor Pat Quinn signed legislation making Illinois the first state to ban the manufacture and sale of personal care products containing plastic microbeads.  At this writing, the NY Senate is still considering A8744A.  Lawmakers in California, Minnesota, and Ohio are also deliberating on potential bans. This article focuses on the background and contents of the New York bill.

Microbeads are tiny plastic spheres, usually polyethylene or polypropylene, used as abrasives in over 100 personal cosmetic products, including facial scrubs, shampoos and soaps, toothpaste, eyeliners, lip gloss, deodorants, and sunblock sticks.  Most of this material gets washed down the drain and flows to wastewater treatment plants that generally are not equipped to remove it from their discharges to surface waters. 

The New York bill was motivated by several reports, including one developed by Schneiderman’s office, which stated that microbeads comprise about one-half of plastic pollution in Lake Erie.  There has been little resistance to the potential ban from major cosmetic manufacturers, some of which are acting independently to replace microbeads with natural abrasives.  The NY bill has stalled mainly because industry is seeking a more extended phase-out timetable.

Plastic pollution

Concern about microbeads is a new subset to the worldwide problem of plastic pollution in surface waters.  The major manifestation is vast amounts of plastic debris in the oceans and along coastlines.  Microplastics in oceans are mostly remnants of larger pieces of plastic that disintegrated over time.  There is as yet little research on whether microbeads from cosmetic products are also occurring in the oceans, and the report from Schneiderman’s office is limited to sampling conducted in 2012 in Lakes Superior, Huron, and Erie by the State University of New York at Fredonia and The 5 Gyres Institute.  SUNY Fredonia conducted follow-up sampling in 2013 in Lakes Michigan, Erie, and Ontario.

Whether a microplastic pollutant is broken down from a larger item or a discarded cosmetic product, the resulting harm is the same.  Primarily, hydrophobic pollutants (i.e., substances that adhere to plastic or sediment), such as polychlorinated biphenyls, DDT, and polycyclic aromatic hydrocarbons, collect on the surface of plastic in either salt or fresh water.

The plastic that attracts the pollutants can then be mistaken for food by aquatic organisms.  Plastic in micro size (typically under 4.75 millimeters (mm) across) will be consumed by very small organisms and proceed up the food chain.  Ingested plastic causes internal abrasions or blockages resulting in reduced food consumption, stunted growth, and starvation.  Contaminated fish will also be consumed by wildlife and humans.

Exposure to hydrophobic pollutants can lead to birth defects, cancer, and learning and growth deficits in children.  The NY Department of Health has found that the Great Lakes, Finger Lakes, Lake Champlain, St. Lawrence River, and Hudson River all contain species with concentrations of hydrophobic pollutants above protective target levels.  This has resulted in consumption advisories, especially for children, pregnant women, and women of childbearing age.

Shape research

Differentiating between microplastic fragments descended from larger items and microbeads from cosmetics was the primary challenge in the research cited in Schneiderman’s report.  Microbead shape, size, and composition vary.  The researchers found that microbeads in products range in size from 0.004 mm to 1.24 mm and are often perfectly spherical in shape, but are also found in irregular shapes.

The researchers collected samples using a mantra trawl, a mesh collector capable of collecting debris greater than 0.355 mm.  Since a great deal of microplastic is smaller than 0.355 mm, the results likely underestimated the concentration of the smallest pieces.

In the lab, the samples were cleaned and the spherical samples were compared to microbeads in two national brands of facial cleansers.  The researchers concluded that the similarities in shape, size, color, and elemental composition indicated that the samples were microbeads and that 58 percent of all microplastic less than 1 mm in size collected in the Great Lakes was spherical. 

“Overall, the annual per-capita consumption of microbeads from cosmetics and personal care products in the United States is estimated at approximately 0.0309 ounces per person per year,” according to the report.  “With over 19.65 million people living in New York State, this adds up to nearly 19 tons of microbeads potentially being discharged into New York’s wastewater stream each year.”

Wastewater treatment

The objective of the New York bill is to eliminate microbeads in products because most wastewater treatment plants are not equipped to remove them from their discharges.  Wastewater plants typically filter water through a coarse (greater than 6 mm) or a fine (1.5 to 6 mm) screen; these screens will not capture significant amounts of microbeads.   The Schneiderman report states that microbeads were found in the effluent of six of seven New York wastewater treatment plants sampled by SUNY Fredonia researchers.

For a wastewater treatment plant to effectively remove microbeads, some form of advanced treatment would be required.  Based on data from the NY State Department of Environmental Conservation, 207, about one-third, of the state’s wastewater treatment plants—and only one of the state’s 10 largest plants—currently use some form of advanced screening or filtration.  More specifically:

• 23 plants use a fine screen or micro-screen that may be capable of removing microbeads.
• 175 plants use microfiltration, sand, or mixed media filtration, or another type of advanced filtration that may be capable of removing microbeads.
• 9 plants use a combination of an advanced screen technology and some form of advanced filtration, which together should provide the most effective microbead removal.
• 403 plants use no advanced treatment method likely to effectively remove microbeads from the wastewater stream.

According to the report, further investigation would be needed to determine the effectiveness of advanced treatment systems in preventing discharges of microbeads before requirements are put into place to treat for microbeads.  Specifically, plant-by-plant studies would be required to determine the efficacy of microbead removal at the 207 plants that use advanced treatment methods, to calculate the cost of upgrades needed if those plants were found to insufficiently capture microbeads, and to calculate the cost of upgrades needed to capture microbeads at the 403 plants without advanced treatment.

Additionally, microbeads in wastewater can also make their way into surface waters during combined sewer overflow (CSO).  Combined sewer systems collect and transport stormwater runoff, domestic sewage, and industrial wastewater in the same pipe.

During periods of heavy rainfall or snowmelt, the volume of wastewater in a combined sewer system can exceed the capacity of the wastewater treatment plant.  When this happens, combined sewer systems discharge excess wastewater containing untreated sewage, industrial waste, pollution, and debris directly into nearby water bodies.  There are approximately 937 CSO outfalls in New York State.
                
Microbead-Free Waters Act
              
Given the difficulty of microbead removal from wastewater, the NY bill focuses on elimination of the pollutant before it is discharged.  The bill defines a “microbead” as any plastic component of a personal cosmetic product measured to be 5 mm or less in size.  “Personal cosmetic products” are defined as any article intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body.  Products for which a prescription is required are excluded from the definition. 

The bill passed by the Assembly would take effect January 1, 2016.  Also, any personal cosmetic product that is regulated as a drug by the U.S. Food and Drug Administration could be legally sold or offered for sale until January 1, 2017.  The maximum penalty for noncompliance would be $2,500 per day as long as the violation continues.  A $5,000 per day maximum penalty would apply for a second violation for as long as the violation continues.

Industry response

The International Campaign Against Microbeads in Cosmetics lists 21 companies that either have stopped or plan to stop using microbeads in their products or purchasing products with microbeads.  The list includes corporate giants such as Colgate-Palmolive, Johnson & Johnson, Procter & Gamble, and Unilever.  Statements by the companies generally indicate an assessment period and phaseout.  For example:

Unilever:  “The amount of plastic in the marine environment thought to originate from the use of plastic scrub beads in personal care products is considered to be limited compared to other sources.  However, a number of stakeholders have expressed concerns about the growing presence and potential impact of micro-plastics in the marine environment and are looking at ways in which the amount of micro-plastics can be reduced, including from the use of plastic scrub beads in personal care products.

“We have decided to phase-out plastic scrub beads from personal care products.  This is because we believe we can provide consumers with products that deliver a similar exfoliating performance without the need to use plastics.  We expect to complete this phase-out globally by 1 January 2015 and are currently exploring which suitable alternatives can best match the sensory experience that the plastic scrub beads provide.”

Colgate-Palmolive:  “Scientific evidence to date indicates that the presence of micro plastics at sea is mainly due to the disintegration of larger plastics in ocean water rather than ingredients in personal care products.  However, we recognize that consumers have questions and are reformulating with alternate ingredients the small number of our products containing microplastics.  Much of this work has already been accomplished, and the process will be completed by 2014.”

Johnson & Johnson:  “We have stopped developing new products containing polyethylene microbeads and have been conducting environmental safety assessments of other alternatives.  These assessments are part of our ‘informed substitution’ approach, which helps ensure that the alternatives we choose are safe and environmentally sound, and that they provide consumers with a great experience.  Our goal is to complete the first phase of reformulations by the end of 2015, which represents about half our products sold that contain microbeads. The timeline for the remaining products will be determined once our informed substitution assessments are complete.”

With these companies leading the way and many others following, the elimination of microbeads from personal care products may be one of those voluntary environmental trends that will only need to be supplemented by laws intended to urge the remaining businesses to get onboard. 

Bill A8744A 

The Schneiderman report

William C. Schillaci

BSchillaci@blr.com