On December 28, 2015, President Obama signed H.R. 1321 into law, amending the Federal Food Drug and Cosmetic Act (“FFDCA”) to ban plastic microbeads. As amended, the FFDCA bans the manufacture or introduction into interstate commerce of rinse-off cosmetics containing intentionally-added plastic microbeads beginning in 2017.
This action follows a number of individual states, including California, passing their own microbeads bans. The primary concern motivating these laws and the new federal law is the environmental impact of the microbeads as they are washed off, pass into sewer systems and into waterways. As the House of Representatives Committee on Energy and Commerce Report 114-371 (the “Report”) stated: “Microbeads are too small to be filtered out by most sewer treatment facilities and make their way into our waterways and wildlife. Microbeads can absorb chemicals commonly found in waterways and become large enough that they are mistaken for food by small fish and wildlife.”
The law defines “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.” In addition, “rinse-off cosmetic” is defined to include toothpaste.
The new federal ban also preempts state laws that are not identical to the new federal restrictions. According to the Report, “State and local governments have created a patchwork of differing laws, which creates problems for interstate commerce. Preemption will ensure certainty for manufacturers and other job creators across the country.”