Caveat Vendor

Possible New State Legislative Trend: Bans on Microbeads in Cosmetics and Other Personal Consumer Products

June 11, 2014

Adam Reich

Microbeads are standard ingredients in many cosmetics and personal care products, including toothpastes, cleansers and scrubs.  The term “microbead” generally refers to a microscopic plastic particle, but it can also refer to other microscopic ingredients like vitamin E, sand, flaxseed, and walnut shells.
Public outcry against plastic microbeads has reached a feverish pitch lately, with opponents decrying the non-biodegradable “plastic soup” that accumulates in waterways after microscopic plastics slip through screen holes at wastewater treatment plants.  Taking note, several states are moving toward legislating away these plastic pollutants.  On June 9, 2014, Illinois became the first state to ban the manufacture and sale of microbeads.

Illinois Senate Bill 2727 (“SB2727”) prohibits the manufacture for sale and sale of any non-drug personal care product that contains synthetic plastic microbeads by 2018 and 2019, respectively.  The law also prohibits the manufacture for sale and sale of any over-the-counter drug that contains synthetic plastic microbeads by 2019 and 2020, respectively.  Violators of SB2727 face civil penalties, including a $1,000 fine for an initial violation, and $2,500 fine for each subsequent violation.  However, private individuals probably cannot enforce the provisions of SB 2727, as the new law does not explicitly include a private right of action and courts have declined the existence of a private right of action under the Illinois Environmental Protection Act (“IEPA”).  See, e.g., Fisher v. Lexington Health Care, Inc., 188 Ill.2d 455, 460 (1990) (indicating that a private right of action is only implied if: (1) the plaintiff is a member of the class for whose benefit the statute was enacted; (2) the plaintiff’s injury is one the statute was designed to protect; (3) a private right of action is consistent with the underlying statutory purpose; and (4) implying a private right of action is necessary to provide an adequate remedy for statutory violation); Neumann v. Carlson Envtl., Inc., 429 F. Supp. 2d 946, 956 (N.D. Ill. 2006) (“This court agrees that the Fisher standard compels the conclusion that a private right of action i[s] unnecessary to vindicate the purposes of the IEPA.”); Chrusler Realty Corp. v. Thomas Indus., Inc., 97 F. Supp. 2d 877, 880 (N.D. Ill. 2000) (holding that “there is no private right of action under the IEPA, and “the Illinois Supreme Court would . . . reach the same result.”)

Interestingly, SB2727 exempts prescription drugs from these bans.  Also of note, SB 2727 defines “synthetic plastic microbead” to mean “any intentionally added non-biodegradable solid plastic particle measured less than 5 millimeters in size [that] is used to exfoliate or cleanse in a rinse-off product.”  This definition may protect some companies from incurring civil penalties for the manufacture and sale of products containing natural ingredients like vitamin E, sand, flaxseed, and walnut shells, which are marketed as “microbeads.”
While Illinois is the first state to ban the manufacture for sale and sale of plastic microbeads, it likely will not be the last to do so.  On February 13 2014, California Assemblyman Richard Bloom introduced AB 1699, which would, starting January 1, 2016, prohibit the “selling or offering for promotional purposes any cleaning product, personal care product, or both containing microplastic.”  AB 1699 also imposes a daily fine of $2,500 for each day the violation continues and expressly authorizes civil actions brought by any “person in the public interest.”  The California Assembly voted 45-10 on May 23, 2014 to approve AB 1699, and the state senate is expected to take action on the Bill this month.

Similarly, on February 11 2014, Assemblyman Robert K. Sweeney, with the support of New York Attorney General Eric Schneiderman, introduced the Microbead-Free Waters Act to the New York State Assembly.  The Act prohibits the manufacture, distribution and sale of personal cosmetic products containing plastic microbeads by 2017.  Violators will face a $2,500 fine each day that the violation continues and will be subject to an injunction preventing the violation.  The New York State Assembly passed the Microbead-Free Waters Act in May 2015, but the state senate has yet to take any action.
Considering the large size of the Illinois, California, and New York consumer markets, cosmetics companies and other personal care product manufacturers must take note of what could become a national legislative trend.  To be prudent, such companies should begin to phase out plastic microbeads from their products now.  In addition, companies that use the term “microbeads” or the phrase “microbead technology” for components other than synthetic micro-plastic particles should consider rebranding in order to avoid being swept into litigation based on state laws that prohibit the manufacture and sale of plastic microbeads.

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