Oxo-degradables on trial: European Court issues judgment on legality of PAC plastics

02 Feb 2024 --- The European Court has issued a long-awaited judgment on a case against the European Commission (EC) over the legality of so-called oxo-degradable plastics. UK company Symphony Environmental filed the suit in 2021, claiming compensation could reach £82 million (US$103 million) for loss of profits and reputational damage.

Oxo-degradables are a type of pro-oxidant additive-containing (PAC) material, which companies like Symphony claim catalyze plastic degradation harmlessly without creating microplastics. 

Debates over the effectiveness of PACs have been ongoing for roughly 40 years. A 2018 EC report called for a process to begin restricting oxo-degradables in the EU. The EU Single Use Plastic Directive (SUPD) then implemented a total outlaw throughout the bloc. 

The Court adjudicated against Symphony and ordered it to pay the legal costs of the EC. Following the Court’s decision, Symphony’s share price plummeted by almost 50%. 

David Robert Newman, chairman of the European Bioeconomy Bureau, says: “[Symphony’s] risk is that people around the world where they sell will ask, well, if the EC is banning them, why are we using them? I guess they will struggle to continue selling this stuff.” 

“It is now down to industry associations to signal to their governments that in their territory oxos are being sold and to ask their governments to take action, for example, impounding stocks and fining companies as we did ten years ago in Italy. It only needs one or two cases to shut them down.”

Oxo debate 
An extensive study review published last year showed almost no evidence that PACs live up to the environmental claims made by proprietors. Critics also accuse companies selling the additives of duping poorer countries such as India, where waste management infrastructure is lacking, into using their products. 

Newman says the Court’s sentence effectively ends access to the European market of any plastics with additives that claim plastics biodegradable by using additives. “The long-running dispute has seen most of the plastic and all of the bioplastic industries against the use of oxo-degradable plastics and, therefore, is a vindication of the opposition to the claims made by Symphony and others,” he comments. 

A UCL study review last year found little evidence that PACs provide the environmental benefits some companies claim.However, Michael Stephen, director of Symphony Environmental, tells Packaging Insights that the ruling means the following: 

• The EU can legislate without an environmental impact assessment.
• The EU can circumvent all the safeguards against arbitrary legislation in the REACH Regulation.
• The EU can disregard the advice of their own scientific experts — the EU Chemicals Agency has said it was not convinced that microplastics are formed by oxo-biodegradable plastic.
• Expert evidence (e.g. the Eunomia Report) paid for by the EU is compelling, but expert evidence paid for by a claimant against the EU is “of no probative value.”
• Industry standards, written by experts in the field to replicate conditions likely to be experienced by a plastic product in the real world, are of no value (except in relation to industrial composting). 

Stephen also points out that the Court cited the difference between oxo-degradable and oxo-biodegradable plastic as defined by the European Committee for Standardization and did not rule that these two types of plastic are the same.

Action against circumvention 
Newman says he is rejoicing, along with the boards, members and staff of Assobioplastiche in Italy, BBIA in the UK and many others who signed petitions to ban PACs, including the Ellen MacArthur Foundation.

However, some major players in the PAC market debate remain active. UK-based Polymateria raised £15 million (US$19.2 million) from Planet First Partners and last year landed £20 million (US$25.6 million) in a series B round. 

The company’s global head of public affairs and regulatory strategy, Steven Altmann-Richer, told Packaging Insights the company’s technology does not fall within the remit of PAC plastics and that he supports banning oxo-degradables. 

But the company’s patents show a range of identical chemical makeups to PACs, including transitional metal additive compounds. Despite this, Polymateria maintains its products are not PACs, instead terming them “bio-transformational” and saying it cannot disclose distinguishing technology. The group did not immediately respond to request for comment on the Court’s ruling. 

There now remains a “last challenge,” Newman says: “To enforce this ruling on other oxo-degradable plastics which are marketed using fanciful terms, in order to circumvent the ban. They know who they are. I hope their days in the EU are numbered, and I shall continue to work to ensure they are.” 

By Louis Gore-Langton