Microbeads (Prohibition) Bill 2019: Committee and Remaining Stages

SECTION 1

I move amendment No. 1:

In page 4, to delete lines 8 to 11 and substitute the following:

“ “plastic” means a synthetic polymer that can be moulded, extruded or physically manipulated into different shapes;”.

The amendment proposes to delete lines 8 to 11 and insertion a definition of plastic as being "a synthetic polymer that can be moulded, extruded or physically manipulated into different shapes". In some of the amendments, we are identifying potential loopholes or concerns. It is to be hoped that such loopholes would be captured during review, but we wish to flag them now. We wish to remove the text, which suggests that a material is plastic when it "retains its final manufactured shape when used for the purpose for which it was manufactured" as we are concerned that this could be used as a loophole. Certain plastics may be eroded or otherwise manipulated such that there is no clarity on its final manufactured shape when used for the purpose for which it was manufactured. We are concerned that certain products could avoid being defined as plastics if they do not retain their final manufactured shape when used for the purpose for which they were manufactured. This could leave loopholes and arguments could be made regarding certain products the shape of which may be malleable, as is recognised in the preceding subsection, which refers to synthetic polymers which can be "moulded, extruded or physically manipulated". Substances that retain malleability could be excluded from the definition of "plastics". We are trying to identify loopholes. I ask the Minister to reassure us in that regard.

The definition in the Bill as it stands provides that plastic retains its final manufactured shape when used. Some solid plastic, such as a plastic fibre, can be flexible. Its intrinsic shape remains and it is a solid, but it is flexible. The amendment, if accepted, would go beyond the scope of what is proposed in the legislation and would require further consultation at EU level. We have consulted on areas around this issue and definitions. My understanding is that we would run into trouble on a derogation issue and could be at a standstill for years, rather than months. Objections could be raised that could not be resolved simply through amendment other than by reverting to the definition currently contained in the Bill. Insofar as the purpose of the Bill is concerned, the definition is robust. I note the concerns raised by the Senator.

As the Minister acknowledges, there is a question if we are considering a microplastic fibre, for example. Will the Minister indicate if this is an issue we will monitor? I hope we do not have to wait years but I know we may not be able to deal with this within the legislation. We will need to monitor this. Part A acknowledges the capacity of a polymer to be manipulated into different shapes and there is a real concern that polymers may be able to change and not have a final shape during or after manufacturing. It will need to be monitored very closely to see if there is use with respect to either exemptions or certain products being excluded or perceived as being excluded from the legislation in that regard. I am just signalling that this is a matter to monitor.

We can discuss exemptions later but I do not intend to make any. I note the point made by the Senator. Plastic fibres will be covered. When we get to the area of polymers remaining in a fluid state, that is separate and it may potentially need to be addressed in future. There is no scope to address it in this Bill. I thank the Senator for raising the point.

Amendment put and declared lost.
Section 1 agreed to.
SECTION 2

Amendments Nos. 2 and 4 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 4, to delete lines 22 to 24 and substitute the following:

"(1) A person shall not manufacture or place on the market a cosmetic product that contains microbeads in excess of the permitted concentration.".

These amendments are related in the sense they are trying to provide more clarity and strengthen the wording of this part of the legislation. If we leave this a little vague, it may be left open to interpretation that might be viewed as a possible loophole. This is about strengthening the legislation.

We are concerned that there could be an inadvertent loophole. We are simply looking to have a narrower framing of the concentration and the water-soluble element. There may be products containing a high concentration and where the plastic would not be water-soluble. There are cosmetic products that are water-resistant and which could inadvertently fall out of consideration. There is the same concern as it relates to cleaning products. I understand the legislation is trying to tackle the water-soluble product problem but our concern is that certain cleaning and cosmetic products could be excluded that should be captured.

I thank the Senators. We discussed this in the Dáil. Water solubility is mentioned because there is a direct pathway to our water systems and we are trying to prevent that. Cosmetic products that are wiped off are not meant to make their way to water courses, although they sometimes do. Education programmes tell people to put the product they use to remove a cosmetic in the bin, for example. We absolutely want to get at those products and we are trying to progress that through the European REACH directive, which I mentioned on Second Stage. It deals with the registration, evaluation, authorisation and restriction of chemicals. It is an area where we are trying to push the European Union to go further and deal with wipe-off products.

We are focusing on water-soluble products with this legislation because there is a direct path to water courses. We are trying to be quite specific in that regard to shut down this avenue. We recognise that we must go further and we will do that under the EU REACH programme that is being progressed, and which we are at the forefront of progressing.

I am glad the Minister is indicating the Government plans to be an advocate on these matters. Not everything is removed by wiping and there are also products that are, in effect, removed by another product. For example, there is the example of micellar water, "washing" waters and cleansing "milks", etc., that are used. In many cases these products do not necessarily involve wiping but they can nonetheless enter water courses. I know we will have the opportunity to speak about sunscreen later, and that is an area of particular concern. Sunscreen enters the water system very directly as those covered in it immerse themselves in water. Am I correct in believing the Minister is indicating his intent to advocate on a widening from the water-soluble constraint within the European discussion?

Yes. It is my view that the example mentioned by the Senator would be captured in this legislation.

The Minister is referring to those cleansing products or "washes".

Where there is a direct pathway to water, they would be covered. This is why we must keep the science and this legislation under review. Under the REACH regulations we are trying to remove many of the polymers and plastics from any of these products and move to natural and organic materials where there are substitutes. There are such substitutes in so many cases. It is something we are trying to progress and not just in this narrow area of plastics in products. We are trying to do it across the remit of the entire REACH directive. It is something on which officials are working. This is something that must be done in tandem with partners. There is a timeline for progressing different elements under the REACH directive over the coming years so we will absolutely be talking about this in the future.

We will withdraw the amendment but we look forward to updates on how the discussion is going.

Amendment, by leave, withdrawn.

Amendments Nos. 3 and 5 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 3:

In page 4, line 23, after "soluble" to insert "and/or fat soluble".

These are quite similar and the amendments address the same matter. The first set of amendments looked to remove conditionality and the other amendments make an addition. The addition is "fat soluble". If a product is soluble and by its nature is being dissolved, it usually implies the involvement of water and that it will eventually enter the water system in some sense. Even if the Minister could not support us on the previous wide-framing approach, we hope we might be able to move forward in having water-soluble and fat-soluble elements in this. It would address the matter where plastics are effectively transmuted through liquids, whether water-based or fatty.

The term "fat soluble" kind of threw me when I looked at the amendments. Is the Senator referring to oil-based products?

Yes. That would be an example.

Okay. I thank the Senator. I am not familiar with all of them.

There are other versions. Soap is an example.

We are treating wear-off products differently to rinse-off products with this legislation. We are targeting rinse-off products because we know we can do it immediately. The debate around wear-off products needs to continue at a European Union level. The position for these two amendments is the same as that for the previous two amendments. It is something we believe must be considered and we are trying to progress this as part of the European Union REACH directive developments. As the amendments are wider in scope than this Bill and the derogation sought for the legislation, I cannot support them at this stage.

Amendment put and declared lost.

I move amendment No. 4:

In page 4, to delete lines 25 to 27 and substitute the following:

"(2) A person shall not manufacture or place on the market a cleaning product that contains microbeads in excess of the permitted concentration.".

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 4, line 26, after “soluble” to insert “and/or fat soluble”.

Amendment, by leave, withdrawn.
Section 2 agreed to.

Amendment No. 6 has been ruled out of order as it is not relevant to the subject matter of the Bill.

What is ruled out of order?

The amendment. A letter has been issued to the Members who submitted the amendment.

What happened to amendment No. 6?

It was ruled out of order.

Amendment No. 6 not moved.
SECTION 3

I move amendment No. 7:

In page 5, to delete lines 6 and 7.

This amendment relates specifically to sunscreen. From what I gather, few sunscreens contain microbeads. In fact, it relates to only a small portion of the sunscreen market. Let us consider the discussions on previous amendments on water soluble materials and wipe-on and wipe-off processes. Sunscreen tends not to be wiped off. It comes off by swimming or showering afterwards. In a way, it is separate to the argument on dealing with wipe-on wipe-off creams or substances. We question why sunscreen should be exempted. We would like to see the amendment accepted. It is important.

This came quicker than we thought. I know this issue was raised in the Dáil. It is a real concern for us.

Protection from sun is important but we believe that few sunscreens on the market would be affected by being included. We are looking mainly at certain products with glitter. I know there are other products. I know there is a question over some brand sunscreens that may contain other forms of plastics.

The key issue is that from our perspective, this is a direct access in that sunscreen enters the ocean directly on people's bodies. We should certainly provide that it does not carry microplastics. When we talk about coast-watch, it is one of the immediate areas and issues. Certainly, there are consumer movements around trying to avoid the presence of microplastics in sunscreen. As legislators, we should look to ensure it is reflected in legislation and policy.

The Minister made an argument about removal but no one is removing sunscreen by swab. Sunscreen is removed either in the ocean or rivers or in the shower. We feel strongly about this.

If this is not covered by the derogation, perhaps the Minister might indicate exactly why it is not covered. To our mind it would be a special case and one that should be reflected. The Government should immediately start a derogation process if it is not covered by this one. Perhaps the Minister can clarify my question on the process and the question on sunscreen.

I absolutely appreciate the motivation behind the amendment. I am not trying to be difficult in saying that I cannot accept it. We debated the matter on Second Stage. I gave a commitment that we would look and consult international bodies on the matter. I said we would look again at the scientific research and evidence available to ensure that we were solid in terms of what we were proposing in allowing for an exemption in the Bill for sunscreen. The amendment would remove the exemption.

We spoke to the Health Products Regulatory Authority. We spoke to the Plastic Soup Foundation in the Netherlands, which oversaw the successful Beat the Microbead campaign. The Senators are right to say that sunscreen generally does not contain microbeads or microplastics. However, the Health Products Regulatory Authority was unable to confirm that there were no specialist anti-allergen sunscreen products containing plastic microbeads as substitutes for natural mineral particles that were used as part of the reflection properties. We had to take a balance of risk in terms of risk to the environment versus risk to the individual's health. If a person was unable to source a substitute sunscreen, there might not be one available. That could pose a risk to the health of that person. That is why the exemption remains.

This will be kept under review over time. There are many other products on the market. Many producers have seen where this is going and have brought in substitute materials, including organic materials that are not plastic. We will get there with all sunscreen products, but because we were unable to confirm from a health point of view that there would be no impact on certain products we were unable to accept the amendment.

As the issue is pursued further, I have a suggestion for the Minister. I accept that there are concerns relating to the medical perspective but we will have a separate discussion on the single use plastics directive when that legislation comes through. The sooner we see meaningful legislation rather than levies, the better. The sooner we see proper legislation on prohibitions relating to single use plastics, the better. Exemptions within that legislation will be needed, however. For example, the use of straws by persons with disability will have to be provided for, as will the reclassification of certain materials with plastics as medical supports. That is a different categorisation. It will be a pertinent issue in our general debate on the regulation of plastics because of the nature of certain plastics objects. I hope what are currently everyday objects will not continue as everyday objects but some may still be necessary for those with particular medical needs or particular disabilities. In that regard, I suggest that when we look to the matter there may be scope for ensuring that we capture any situation in which there may be a medical necessity, such as that outlined by the Minister relating to sunscreen. Anyway, that should not provide a loophole for what are unfortunately increasingly prevalent products like shimmer products. Certain sunscreens contain shimmer and things that are effectively cosmetic and not medical. Such elements have been added to sunscreen.

There is a nuance here. I appreciate that our amendment might not capture that nuance, but it is important that we move ahead and capture that nuance.

I take the point the Senator is making. Some of the products that create a shimmer effect can do so through natural particles, rather than plastics.

Given the public outcry against this product or this type of material in products, producers will move to make replacements if they have not done so already. However, until we can be certain, we have to put the potential negative health impact first and foremost.

The Senator referred to the single use plastics directive. That legislation will not fall under my remit. In a way, it is probably a good thing. I keep leaving my keep cup in various places. That is something I have to deal with myself in terms of my own behaviour. There will be opportunities to do other things with legislation. If we have identified a point further down the line where we can make amendments, it may be helpful in terms of the extra things-----

It may be an opportunity to open this up.

I will absolutely raise the matter with the Minister for Communications, Climate Action and Environment, Deputy Bruton, in that event.

Is the amendment being pressed?

Amendment put and declared lost.

I move amendment No. 8:

In page 5, to delete lines 13 and 14.

This relates to the transit of goods through a territory, as I understand it. We have engaged with the Department on concerns that this could breach other rules. Again, we are looking for a moment of leadership from Ireland. However, I understand the constraints on the matter and that the derogation would not allow for it at the moment. Again, it comes from a desire to ensure Irish leadership. In the context of the current EU law and the fact that it may create tension, we will withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 9 and 10 are related and may be discussed together, by agreement.

I move amendment No. 9:

In page 5, line 29, to delete “may” and substitute “shall”.

We are looking for strengthening of the legislation replacing the word "may", which is open-ended and might happen, with "shall" which sounds more like that it will.

Similarly, in amendment No. 10, we propose to put in "and" instead of "or", which provides an optional opt-out, whereas "and" means both aspects will be considered.

I consider the legislation is strong enough in terms of the powers afforded to the Minister of the day concerning the directions he or she has to give. Therefore, the amendments are unnecessary.

Is the amendment being pressed?

Yes, in the interests of strengthening the hand of a Minister.

Amendment put and declared lost.

I move amendment No. 10:

In page 5, line 30, to delete “or” and substitute “and”.

Amendment put and declared lost.

I move amendment No. 11:

In page 5, line 31, after “and” to insert “reuse, recycling or”.

Rather than just dealing with the disposal of a product, the amendment seeks to add in the phrase “reuse, recycling or” disposal. Such an addition fits in with the current environment and conversations that even schoolchildren are having about climate change.

The amendment fits with the changing culture that we are aiming towards, as mentioned by the Minister. I am sure he would acknowledge that our amendment contains a better wording because it includes a wider framing and would send a signal because, increasingly, when we talk about the life cycles and journey of products we are having to move towards life-cycle monitoring, cost and tracking. Again, our amendment is a signal that the stages in the life cycle of any product may include reuse or recycling, as well as disposal. There may be difficulties in terms of timing but our amendment is a good proposal and would benefit the legislation.

It is a good proposal and good wording. I am assured, however, that section 3(5) of the Bill will give me sufficient power to achieve the aim. If I were to make regulations around exemptions then I would be able to make sure that the language spoke to reuse or recycling. Again, at the moment I do not foresee making exemptions in the legislation so it may not be an issue at all as it comes to pass.

Amendment put and declared lost.

I move amendment No. 12:

In page 5, after line 37, to insert the following:

“(7) Any regulation made under subsection (3) shall be valid for a period of two years unless renewed by the Minister in accordance with this section.”.

My amendment seeks to insert a new section.

No, it is a new subsection.

The amendment suggests that the regulations that would be made by this will "be valid for a period of two years unless renewed by the Minister in accordance with this section." The goal is to ensure that we could have a strengthening and an ongoing review. It is part of the same spirit of renewal and strengthening.

Section 3(6) states "Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas". As there is a danger, perhaps, in how we proposed amendment No. 12, I am not sure we will press it. I certainly would not want a situation whereby we would have any sense of a natural expiry for the regulations that would come in and that is certainly not the intent of the amendment. As I can see a danger in that, I am considering whether to press the amendment.

Perhaps the Minister might speak to the intent of the amendment. I mean we should not have a situation whereby these excellent regulations would expire previous to the two-year period. In the context of section 3(6), the Minister should be actively engaging with the Oireachtas in a constant process of improvement and strengthening of legislation and that should happen on a regular basis. I do not think the wording in the amendment is correct so I probably will withdraw it. However, I ask the Minister to comment on the general issue of the evolution of regulations underneath the Bill as it stands. He should please explain how he sees that working, and how he sees the engagement and expiry periods working.

The Senator is correct to fear the wording and I appreciate her recognition of that.

We have come back to this matter a couple of times in the debate. If one were an outsider looking in, one might think this is the one thing we are going to do on plastics and then we are going away somewhere for a while but we are only beginning this journey. There will be ample opportunities to use either other legislative vehicles to make amendments here that might be necessary in the future or even use regulations to make changes that need to be made if that relates to exemptions.

Sunset clauses are quite popular in other parliamentary systems. What I do not like is that they interfere with the power of the Minister to revoke something early, potentially, or if they wanted to have a phase-out period in line with a new regulation coming in say, for example, a single plastic use regulation or an EU REACH regulation, they would not have the power to do that or it would be a bit more cumbersome to get it done. The power to revoke is a lot stronger than having an automatic sunset clause in this instance. That is why, notwithstanding the fact that the language might have been crafted a bit more differently, it is difficult to accept the amendment.

I accept the Minister's concern and acknowledge there is the issue of revocation. As we are on Committee Stage, I ask the Minister to clarify that he does not foresee, for example, exemptions being made and remaining unreviewed for very long or prolonged periods, as science or others things evolve. The Minister has quite wide powers to exempt a product through regulation. Can he clarify that he does not envisage an exemption going unquestioned or unchallenged for prolonged periods? He has indicated that it is important for him as Minister, or whoever may be the Minister, to be able to revoke earlier, which is very good. I appreciate that a sunset clause is a blunt tool but I am interested in the intersection with section 3(6) because I would like the Houses of the Oireachtas to have the chance to engage. When an exemption is made for a particular product, sometimes there is lobbying by a particular industry or so forth. I do not want exemptions to sit unquestioned for five, ten or whatever years. I ask the Minister to comment a tiny bit more on the intersection with the Houses of the Oireachtas and what he expects to happen when there is an exemption made under regulation.

Section 3 details exemptions.

Many of the exemptions at the beginning of the section are the types of things that we have been talking about such as medicinal products and sunscreen. Where the concerns of the Senators might be realised would be under section 3(3) where one exempts products.

Exactly. At the moment I do not foresee making any exemptions under that part of the Bill. I hope that this law will come into effect before the end of this year, so it will be the new law from 1 January. If I were to then go about making an exemption a process has to be followed by way of putting in place regulations, which takes a number of months. If one had the sunset clause in place, for example, one would be talking about it expiring in 2022.

We are going to be so far past that by 2022. With the EU regulations on the single plastic use directive, events will have overcome even the power for the Minister to make exemptions under this section of the Bill. I do not think it is going to be a fear that might be realised. Hence, the power to revoke remains the stronger element in the Bill.

I accept the Minister's argument. We may have, in subsequent legislation, an opportunity to address any inadvertent danger of a long-standing regulation or exemption. I appreciate and am heartened by the fact that the Minister is not currently planning to make wider exemptions in terms of industrial cleaning products. It is in that context that I withdraw the amendment.

Amendment, by leave, withdrawn.
Section 3 agreed to.
Sections 4 to 8, inclusive, agreed to.
SECTION 9

I move amendment No. 13:

In page 10, between lines 29 and 30, to insert the following:

“(2) The Agency shall produce a report on the implementation of these Regulations after the first 12 months of their operation and lay this report before the Houses of the Oireachtas. The report shall include an overview of implementation including any exemptions granted with details thereof, product tests undertaken and results and any recommendations to further prevent microbead and other microplastic pollution.

(3) The Agency shall produce subsequent reports under this section as it considers appropriate.”.

In his Second Stage speech the Minister gave some indications on this issue, but perhaps he could clarify further. We spoke earlier about the fact that this is an evolving area. As the Minister acknowledged, it is in the context of marine protection and increasing concern about the marine. I note, and this might appear to be a tangent but I do not believe it is, that the Minister spoke about marine protection legislation. The marine protected areas is another proposal that came from this House. It was originated by the then Senator, Grace O'Sullivan, and co-signed by me, Senator Ruane and others. I appreciate what the Minister said about that process and that consideration. It is one we might have an opportunity to engage on because having put forward the proposals we are very interested in the direction of travel.

Similarly, we want something that indicates the Minister will track this so that what we have signalled as loopholes do not emerge as such. We do not wish see a wide range of products which we are told are technically fat soluble and not water soluble, even though it might be soap and water that is used to remove them so they end up entering the waterways. We also do not wish to see fluid plastic being used, or the fact that a shape may change over the course of usage being used as an exemption. It is about tracking those concerns about loopholes. We know that wherever there is a possible loophole it will be used.

The Minister addressed this issue briefly on Second Stage but perhaps he will confirm something with regard to the Environmental Protection Agency. We did not comment on it under other sections but I commend the fact that both resources and powers are being given to the agency in respect of this legislation. That is positive because too often legislation is passed without mechanisms or resources for its enforcement. I commend that aspect of the Bill. Will the Environmental Protection Agency produce a report on how the regulations have been implemented and bring that to the Houses of the Oireachtas to give us a chance to examine evidence on how this new and, in some senses, innovative law is playing out in practice? The Minister indicated something about that on Second Stage but will he confirm that the Houses will have the opportunity to see a report from the EPA on these issues within 12 months of the Bill being passed?

The use of the word "loopholes" is important in terms of language. We do not wish to give people outside the House the impression that what we have introduced is not the most professional legislation in the EU dealing with microbeads because it is. What we and the Senator recognise is the need to go further once this is done, not to sit back on our laurels and say we are brilliant and are now the vanguard. We have reached this point and we have gone further than our EU partners; now the issue is to drive further on and to use the authority we have as first movers to bring others with us.

With regard to the work of the EPA, the money is available to it to enforce its new powers. It is not in the Bill but I give an undertaking to the Senators today to request a report from the EPA on implementation of the Bill after 12 months of its operation. Let us use that as an opportunity to address the issues that have been raised in the amendments. We can see what the EPA has done to enforce the new law and whether that needs to be strengthened or requires greater resources. At that point we can see if we need to make amendments to the legislation.

We are satisfied with the response from the Minister and in that context we will withdraw the amendment.

Amendment, by leave, withdrawn.
Section 9 agreed to.
Sections 10 and 11 agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Senators for their co-operation and interest. I fully accept that it has been a long process. However, we have been able to proceed quickly through both Houses after receiving the derogation from the EU. I appreciate the Seanad agreeing to take all Stages today so we could have the legislation in effect from 1 January next. That is an important statement and an excellent example of what we can do when we work together in both Houses. I thank all Senators for their support.

Question put and agreed to.

When is it proposed to sit again?

At 10.30 tomorrow morning.

The Seanad adjourned at 7.35 p.m. until 10.30 a.m. on Wednesday, 18 December 2019.