Symphony Environmental Technologies : OPA response to Scottish Government Consultation

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EU Registration no: 370641927438- 79

OPA response to Scottish Government Consultation

on "Market Restrictions on Problematic Single-Use Plastic Items"

1. INTRODUCTION

1. Coronavirus has made everyone realise that single-use plastic is very useful to protect us from the spread of disease, and it is in use today for a wide variety of personal protective equipment and packaging. This is not a temporary phenomenon, because people are never going to forget the need to protect themselves and their food from microbial attack.
2. Plastic is one of the few materials in common use which can itself be made antimicrobial, and plastic made with antimicrobial technology has been tested according to ISO 21072 to destroy 99.9% of viruses within one hour of coming into contact with it. All single-use plastics should now be made with anti- microbial technology. (see https://www.symphonyenvironmental.com/wp-content/uploads/2020/09/Antimircobial-Optimised.pdf.pdf)
3. They should also be made with oxo-biodegradable technology because some of this plastic will get into the environment after its useful life. That is the reason for this consultation by the Scottish Government, as described by the Minister when she says "this consultation proposes the introduction of market restrictions
   - effectively a ban - on the single-use plastic items most commonly found littered on European beaches."
   This is reinforced by para. 1.1 of the consultation document. The problem with plastic is litter.
4. It was to address the problem of plastic litter that oxo-biodegradable plastic was invented forty years ago by the scientists who had themselves created plastics and who realised that the durability which they had achieved could be a problem. They therefore found a way to cause the molecular structure of the plastic to convert automatically by oxidation into low molecular-weight materials which are biodegradable.
   They called this process "oxo-biodegradation" and it occurs anywhere in the open environment where oxygen is present, without any need to take the plastic to a composting facility. Light and heat will accelerate the process, but they are not essential.
5. An OPA member, Symphony Environmental Technologies Plc received a letter on 29th October 2020 from the Rt. Hon. Theresa Villiers MP., the immediate past Secretary of State for the Environment in which she says "We are all aware that plastic which has escaped into the open environment as litter is causing a serious problem, and that governments are taking measures to reduce the amount. Nevertheless it is realistic to expect that despite those measures a significant amount of plastic will continue to get into the open environment from which it cannot easily be collected for recycling or anything else.

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1. I gather that your company has sought to address this problem by developing a type of plastic known as "oxo-biodegradable," which converts into non-toxic biodegradable materials if it gets into the open environment, without any need to collect it and take it to a composting facility.
2. I am also aware that by Directive 2019/904 the EU has banned "oxo-degradable" plastic as from July
   2021 because they think it creates microplastics, but they have not distinguished oxo-degradable from oxo- BIOdegradable plastic. I am concerned that having commenced the process required by REACH before any substance can be banned, the EU did not complete the process and imposed the ban notwithstanding that their own scientific experts (ECHA) advised that they are not convinced that microplastics are formed.
3. I am writing to say that as a former UK Secretary of State for the Environment I see no justification for banning oxo-BIOdegradable plastic. In fact I consider this technology can play a positive role in tackling plastics pollution because it enables everyday plastics to biodegrade safely and quickly if they get into the open environment."

2. A CIRCULAR ECONOMY FOR PLASTICS

1. The OPA would agree that plastic is a resource which should not be wasted, and that it should therefore be re-used and recycled where it makes economic and environmental sense to do so. Recycling makes more sense for some of types of plastic (eg PET) than for others (eg. PE and PP).
2. However, no government in the UK has a policy for dealing with plastic waste which has escaped into the open environment, from which it cannot be collected and disposed of in the right way, and cannot therefore fit into a conventional circular economy.
3. Their blind spot is that despite their best efforts a significant amount of plastic will continue to get into the open environment for the foreseeable future, which cannot be collected for recycling or anything else.
4. Oxo-biodegradabletechnology is specifically designed to deal with this problem, by causing the plastic to become biodegradable much more quickly if it gets into the open environment. It is not designed to biodegrade in landfill because biodegradation of anything in anaerobic conditions generates methane. Nor is it designed for composting, and European Standard EN13432 is not therefore relevant. It can be recycled if collected during its useful life.

1. The reason why single-use plastics have met so much opposition is because the plastics industry has failed to offer policymakers a way to deal with the single-use plastic products which get into the open environment all over the world, where they lie or float around for decades. It is the sight of animals and birds entangled with plastic which has generated monumental public concern and has created plastiphobia, leading to outright bans.
2. The plastics industry could have addressed this problem, to the great benefit of themselves and the environment, by making everyday plastic products with oxo-biodegradable technology so that they would become biodegradable much more quickly and would be recycled back into nature by bacteria and fungi. However, (probably because of their internal power-structure) Plastics Europe have dismissed this technology instead of engaging with the experts in the oxo-biodegradable plastics industry and seeking to understand it better and to explain it to their members and to the public.
3. They have concentrated instead on redesign and recycling, but it must be obvious to them that this cannot deal with the plastic which escapes into the open environment from which it cannot be collected. Nor can the so-called compostable plastics, which have to be collected and taken for composting. The OPA does not consider that there is in fact any useful role for plastics in the production of compost (see https://www.biodeg.org/subjects-of-interest/composting/).

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2.7 The Scottish government now has an opportunity to adopt a policy for dealing with plastic which has escaped into the open environment, and especially the oceans, from which it cannot realistically be collected for recycling or anything else, and without banning items which are useful to citizens.

3. THE EU DIRECTIVE

1. Para. 1 of the Scottish consultation says that "This consultation is seeking views on the introduction of market restrictions - effectively a ban - for problematic single-use plastic (SUP) items and all oxo- degradable products in line with Article 5 of the EU Single-Use Plastics Directive (EU) 2019/904."
2. However, this Directive no longer applies to the UK, and on 21st December 2020 an OPA member, Symphony Environmental Technologies Plc commenced a legal action against the Commission, Parliament, and Council of the European Union in relation to their decision to adopt Article 5 of the Directive. Symphony has been advised by three Barristers, all experts in EU law, that this part of the Directive is confusing and illegal, and substantial damages are being claimed.
3. Symphony and the OPA have explained to EU officials the difference between oxo-degradable and oxo-BIOdegradable plastic but the Directive has not made this clear. The Directive has not used the standard definitions set out by the European Standards organisation CEN in TR15351 - see below.
4. "Oxo-degradable"plastic breaks up into fragments which can lie or float around in the environment for decades, but "oxo-biodegradable" technology causes ordinary plastic to degrade if it gets into the open environment and to biodegrade in the same way as nature's wastes, being recycled back into nature.
5. The main purpose of the Directive is to ban single-use plastics most often found on the beaches, but in addition to the specified items it includes all items made with "oxo-degradable plastic."

There is no evidence that any items made with oxo-BIOdegradable plastic have been found on the beaches or anywhere else.

3.6 The EU fails to acknowledge that the billions of persistent microplastics in the open environment, including the oceans, are actually coming from the fragmentation of ordinary and bio-based plastics which have not been upgraded with oxo-BIOdegradable technology.

4. ILLEGALITY

1. In addition to causing confusion, Symphony has been advised that the ban is actually illegal because there has been a failure to accord due process, and because it is disproportionate and discriminatory. Any purported ban in the UK would face a similar legal challenge if it were not made clear that it does not apply to oxo-biodegradable plastic.
2. The EU has a well-established procedure, set out in the REACH Regulation 2006/1907, for determining whether substances should be banned. This procedure was designed to avoid the kind of arbitrary action which has occurred in this case.
3. Neither the Commission's report dated January 2018, nor the Eunomia Report of August 2016 recommend a ban on oxo-biodegradable plastic, but the 2018 report said that "a process to restrict the use of oxo-plastics in the EU will be started."
4. Accordingly, and in compliance with the REACH procedure, the EU Commission requested the
   European Chemicals Agency ("ECHA") under Article 69 of REACH to investigate its concerns regarding microplastics. The OPA submitted scientific evidence to ECHA on oxo-BIOdegradable plastic and on 30 October 2018 ECHA said that they were not convinced that it created microplastics.

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1. The Commission then made the extraordinary decision on 8 May 2019 to terminate ECHA's investigation and to slip a few words into the draft Directive to impose a ban as from 3 July 2021, citing microplastics as a reason. The Commission's proposal to the Parliament had not mentioned a ban on oxo- degradable plastic, and the amendment seems to have been the work of lobbyists acting for rival commercial interests. Never before has an ECHA investigation been circumvented by legislation.
2. Only if ECHA had recommended a restriction, supported by the detailed dossier prescribed by Annex XV of REACH, their recommendation would have had to be considered by two committees under Articles 70 and 71 of REACH, and also by a stakeholder consultation under Article 71(1), before any restriction could be proposed under Article 73. None of these procedures prescribed by EU law have been complied with.
3. Symphony is represented in this case by Josh Holmes QC and Jack Williams, Barristers of Monckton Chambers, Grays Inn, London - the UK's leading experts in EU law, and by Keystone Law, Solicitors of Chancery Lane, London. Symphony has also been advised by Professor Sir Alan Dashwood QC, the author of
   "Wyatt & Dashwood's European Union Law."

5. THE SCOTTISH CONSULTATION

1. The consultation paper seems to be influenced by the EU Directive (which is no longer applicable in the UK) and offers only three paragraphs in support of its draconian proposal for a complete ban of oxo- degradable plastics, whether single-use plastics or not, and whether commonly found on beaches or not.
2. Oxo-degradableand oxo-biodegradable plastics are not distinguished from each other in the consultation, and are not mentioned at all in the Scottish EPECOM Report of September 2020 "Ending the
   Throwaway Culture: Five Principles for Tackling Single-use Items."
3. The consultation paper cites the Eunomia Report of August 2016, which does not recommend a ban. It also cites "Moving away from single-use - Guide for national decision makers to implement the single-use plastics directive" published on 10th October 2019 by "Rethink Plastic Alliance" but this document does not attempt to provide any scientific justification for why oxo-biodegradable plastics should be banned.
4. The Scottish consultation paper says on page 12 that "a significant body of evidence suggests that, in reality, oxo-degradable plastics simply break down into small fragments" but as mentioned above this is the very issue on which ECHA were consulted, and were not convinced. No scientific authority for this suggestion is cited in the consultation, and in fact the Eunomia report says that "The debate around the biodegradability of PAC plastic is not finalised, but should move forward from the assertion that PAC plastics merely fragment…"
5. The suggestion in the consultation paper that oxo-degradable plastics simply break down into small fragments is true of oxo-degradable, but not of oxo-biodegradable, plastics, and it seems to have been taken from the Ellen MacArthur Foundation report of November 2017. However, after listening to evidence from the OPA's scientists about oxo-biodegradable plastics EMF now admit in their May 2019 report that these plastics are manufactured so that they can degrade faster than conventional plastics and that they do become biodegradable.
6. The Scottish consultation paper also asserts that they "negatively affect the recycling of conventional plastic" but there is no attempt to ban "compostable" plastics, which will certainly contaminate the recycling of conventional plastic. In fact oxo-biodegradable plastic is compatible with recycling (see https://www.biodeg.org/subjects-of-interest/recycling-2/) and no court would accept that it posed for that reason a threat to human health or the environment sufficient to justify a ban.
7. The consultation paper also gives as a reason "the difficulty for the consumer to identify the material" but there is no reason why consumers would need to identify the material. It is used to make short-life items, and should be treated exactly like ordinary plastic, for it is only if it escapes collection and ends up in

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