Microplastics: Narrow Statutory Language and Broad Scientific Problems
Allison Goldman
The term microplastics came into existence in 2004, when a research team from the University of Plymouth published their discovery and analysis of microscopic synthetic polymers in beach sediment and used the term microplastics to refer to the plastic particles they found.[1] The term has since become a broad category, comprising both intentionally manufactured plastic and small plastic particles resulting from the weathering of plastic debris in the environment.[2] Because of the diversity of plastic sources, microplastics come in a wide variety of sizes, chemical compositions, shapes, and aging states.[3] This has made them difficult to identify and quantify, requiring a wide variety of analytical approaches to determine their prevalence and environmental impact.[4]
In 2015, Congress passed the Microbead-Free Waters Act, amending the Federal Food, Drug, and Cosmetic Act to prohibit the production of rinse-off cosmetics containing plastic microbeads intentionally added to the product.[5] By defining plastic microbeads as “any solid plastic particle that is less than five millimeters in size and is intended to be used to exfoliate or cleanse the human body or any part thereof” and limiting the regulation to “intentionally-added plastic microbeads,”[6] the language of the statute was kept exceedingly narrow, resulting in a limited scope which prevents it from targeting the most prevalent forms of microplastic pollution.[7] While things like toothpaste, which may not ordinarily be thought of as cosmetics, are included by the statute, only products designed “to exfoliate or cleanse the human body” are captured by the statutory language, omitting the use of plastic microbeads in other types of products and other forms of microplastics entirely.[8]
This kind of limitation in scope through narrow statutory language fails to address the complexity of the science behind microplastics. Because the same plastics can have different biological impacts depending on the extent and type of weathering that they undergo, statutory language targeting a specific type of manufactured plastic is unlikely to account for the environmental impact it will have years after it first enters the environment: a plastic that has little biological impact at the time of manufacturing but can release toxic microplastics over time is a less compelling target for legislators than a plastic that is identifiably toxic at the time of manufacturing.[9] One potential solution to this problem is regulating plastics by their effect rather than regulating them at the source: this could be done by defining a scientific standard for use in legislation which hinges on the environmental impact of plastics after they enter the environment and have an opportunity to degrade.[10]
In 2020, Congress passed that Save Our Seas 2.0 Act, establishing the need for research surrounding microplastics and requiring certain agencies to conduct research and prepare reports.[11] While the act seems at first glance to address the broad scientific problems surrounding plastics with wide-reaching statutory language, it fails to place any limitations on the production of harmful plastics.[12] In a report responding to the act’s request for a scientific synthesis of the United States’ contribution and response to plastic waste, the National Academies pointed to the focus on cleanup and local waste management in the United States rather than intervention at earlier stages, like production and product design.[13] Echoing earlier research, the report suggests broader regulations, like prohibitions of plastic based on specific criteria, indicating the necessity of legislative language reflecting the impact plastics have after consumer use.[14]
Thus, while recent legislative action aimed at microplastics reflects a congressional desire to remedy the issue, broader statutory language is ultimately necessary to address the complex scientific problem behind microplastics. Rather than narrowly targeting specific types of manufacture, statutory language should regulate plastics based on the impact they will have after they inevitably enter the environment: this would force manufacturers to thoroughly research the environmental impact that their plastic products will have before selling them to avoid liability for the harm that they cause. Ultimately, this kind of legislation would incentivize high quality research into the downstream impact of plastics – by shifting the burden of conducting that research to manufacturers – and it would prevent plastics which will have dangerous effects after weathering from entering the environment in the first place. By approaching future legislation in this way, legislators can regulate more efficiently and intervene earlier in the lifecycle of plastics, limiting the environmental harm and need for intervention that would otherwise result from them.
Allison Goldman is a Junior Editor with MJEAL. They grew up in the Chicago area and earned a Bachelor of Arts in Chemistry and Bachelor of Music in Trombone Performance from Lawrence University in Appleton, WI. They can be reached at alliegol@umich.edu.
[1] Richard C. Thompson et al., Lost At Sea: Where is All the Plastic?, 304, Sci. 838 (2004); Natalia P. Ivleva, Chemical Analysis of Microplastics and Nanoplastics: Challenges, Advanced Methods, and Perspectives, 121, Chem. Rev. 11886, 11887 (2021).
[2] Ivleva, supra note 1, at 11887.
[3] Ivleva, supra note 1, at 11887-88.
[4] Ivleva, supra note 1, at 11888.
[5] Microbead-Free Waters Act of 2015, Pub. L. No. 114-114, 129 Stat. 3129 (codified as amended at 21 U.S.C. § 331).
[6] Id.
[7] G. Allen Burton, Losing Sight of Science in the Regulatory Push to Ban Microbeads from Consumer Products and Industrial Use, 11, Integrated Env’t Assessment & Mgmt. 346 (2015); Jason P. McDevitt et al., Addressing the Issue of Microplastics in the Wake of the Microbead-Free Waters Act—A New Standard Can Facilitate Improved Policy, 51, Env’t. Sci. & Tech. 6611, 6612-13 (2017).
[8] See Microbead-Free Waters Act of 2015, Pub. L. No. 114-114, 129 Stat. 3129 (codified as amended at 21 U.S.C. § 331).
[9] See Annika Jahnke et al. Reducing Uncertainty and Confronting Ignorance about the Possible Impacts of Weathering Plastic in the Marine Environment, 4, Env’t Sci. & Tech. Letters 85, 87 (2017).
[10] E.g., McDevitt supra note 7, at 6614 (suggesting an ecocyclability standard under which plastics would need to meet certain standards for degradability, bioaccumulation, and toxicity in order to avoid regulation under future legislation)
[11] The act established a genius prize for research combatting plastic waste. Save Our Seas 2.0 Act of 2020, Pub. L. No. 116-224, § 122, 134 Stat. 1072. It also required two reports from the Interagency Marine Debris Coordinating Committee on opportunities: one on innovative uses of plastic waste and one on microfiber pollution. Save Our Seas 2.0 Act of 2020, Pub. L. No. 116-224, §§ 131-132, 134 Stat. 1072. Additionally, the Under Secretary was required to arrange for the National Academies of Sciences, Engineering, and Medicine to conduct a multifaceted study and release a report concerning global plastic waste. Save Our Seas 2.0 Act of 2020, Pub. L. No. 116-224, § 133, 134 Stat. 1072.
[12] See generally Save Our Seas 2.0 Act of 2020, Pub. L. No. 116-224, 134 Stat. 1072 (using the terms “microplastic” and “microfiber” to describe the need for research but failing to regulate either category).
[13] The National Academies of Sciences, Engineering, & Medicine, Reckoning with the U.S. Role in Global Ocean Plastic Waste, at ix, 154-155 (2022).
[14] See Id. at 160 (suggesting criteria like toxicity, necessity of use, and potential for loss to the environment as a means of regulating plastics, rather than limiting regulation to narrower categories). E.g. McDevitt supra note 9.