UK-based biodegradable plastics group Symphony Environmental Technologies is suing the European Union (EU) for damages that could amount to tens of millions of euro, relating to its decision to ban oxo-degradable products through Article 5 of the Single-Use Plastics Directive. Symphony CEO Michael Laurier called it a “very ugly maneuver in Brussels, and we think it is the work of lobbyists acting for some large German and Italian competitors.”
Laurier noted that he is aware of another body — the International Bromine Council — that is suing the EU for an “unprecedented and unwarranted restriction” on their products, and we wish them well. It seems that the EU has become so arrogant, and lobbyists in Brussels so powerful, that they think they can do whatever they please.”
Symphony said it had been advised by three barristers, all experts in EU law, that Article 5 of the directive related to single-use plastics is illegal. The EU has a well-established procedure, set out in the REACH regulation, for determining whether substances should be banned. This procedure was designed to avoid the kind of arbitrary action that has occurred in this case, said Symphony’s announcement.
On Dec. 22, 2017, in compliance with the procedure under Article 69 of REACH, the EU Commission asked the European Chemicals Agency (ECHA) to investigate its concerns regarding microplastics. Symphony submitted scientific evidence to ECHA on oxo-biodegradable plastics and on Oct. 30, 2018, ECHA said that they were not convinced that it created microplastics.
The European Commission then took the extraordinary step on May 8, 2019, to terminate ECHA’s investigation. The EU proceeded to impose a ban on oxo-degradable products effective July 3, 2021, citing microplastics as a reason. In doing so, it ignored the advice of ECHA, its own scientific experts. Never has an ECHA investigation been circumvented by legislation, said Symphony.
If ECHA had recommended a restriction, supported by the detailed dossier prescribed by Annex XV of REACH, it 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, said Symphony.
Symphony’s d2w plastic technology is oxo-biodegradable – not oxo-degradable. It causes ordinary plastic to biodegrade if it gets in the open environment, and can be re-used and recycled if collected during its service life. Symphony Environmental said the EU directive adds to confusion because it fails to distinguish clearly between these two very different technologies, and the confusion has damaged Symphony’s existing and potential sales of its d2W technology.
“We continue to explain the difference between oxo-degradable and oxo-biodegradable plastic but the directive has not made this clear,” the company said. “We believe that Symphony’s d2w technology would achieve considerably better traction both within the EU and outside Europe if we could resolve this confusion.”
Laurier added, “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 Symphony’s oxo-biodegradable technology.”
Symphony Environmental has been defending its oxo-biodegradable (d2w) plastic material for several years. The material reportedly degrades in the open environment and does so at a much faster rate than conventional bio-based materials. Michael Stephen, Deputy Chairman of Symphony Environmental, told PlasticsToday in a July 15, 2020, article, “There does seem to be a campaign against oxo-biodegradable plastics promoted by the bio-based plastics industry.”
Symphony Environmental said it had been advised that the ban was illegal because there had been a failure to accord due process, and because it was disproportionate and discriminatory.
Michael Stephen, Symphony’s Deputy Chairman, a former barrister and member of parliament, said, “The board has not decided lightly to take this court action, but the way the EU has behaved and the resultant confusion and damage to our business is unacceptable. We will not accept restraint of trade without due process, non-discrimination, proportionality, and scientific justification, and we are claiming compensation under Article 340 of the treaty on the functioning of the EU.
Symphony’s d2p business is not directly affected by the directive, the company emphasized. D2p is a wide range of products, which include technologies that give plastic, rubber, and silicon anti-bacterial and anti-viral properties, and is an increasingly important part of Symphony’s overall business.