Packaging and Packaging Waste – at the Dawn of a New Era in Regulation

Packaging and packaging waste has been regulated by the European Union (“EU”) since 1994. As consumers, we all know that most goods are sold in packaging, and that there may be various packaging at the several stages of the product’s life. Packaging comes in a diversity of material (glass, paper, cardboard, metal, plastics, wood, corks, textile, ceramics or porcelain…) and items (cans, tubes, boxes, films and bags). In 2018, when the Packaging and Packaging Waste Directive (94/62/EC) (PPWD) was last amended, the packaging industry in the EU had a turnover of EUR 355 billion.

Notwithstanding the Packaging and Packaging Waste Directive – as well as other legislative instruments aimed at reducing waste, such as the Single-use Plastics Directive and the Own-Resources Decision – 84.3 million tonnes of packaging waste were generated in the EU in 2021. In September 2022, the European Commission assessed the state of play of the transposition of the PPWD in the various Member States, and found that not all Member States had transposed the 2018 amendments to the PPWD on time, or at all. The assessment also found legislative and practical differences between Member States on essential requirements of the PPWD.

In November 2022 therefore, the European Commission tabled a draft Regulation on packaging and packaging waste. The aim of the new Regulation is to reduce the negative environment impact of packaging and packaging waste – specifically to reduce the generation of packaging waste, particularly through the reuse of certain packaging, and promote the use of recycled content in packaging. Given the background against which the Regulation was tabled, it is easy to see why the Commission opted for a Regulation rather than a Directive – to ensure that Member States fulfil their obligations in the same way.

The proposal is currently going through the EU’s legislative process. The current proposal effectively regulates packaging waste throughout its life cycle, from being placed on the market to its collection and recycling or treatment. In brief, the proposal covers:

• Sustainability requirements – The Regulation will regulate the content of certain substances in packaging. All packaging is to be recyclable; it has to be designed for recycling by 1 January 2030 and recyclable at scale by 1 January 2035. The Regulation also sets out new recycling targets. Some packaging items would have to be compostable within 2 years of the entry into force of the regulation: tea or coffee bags, coffee or tea system single-serve units, sticky labels attached to fruit and vegetables and very lightweight plastic carrier bags.
• Labelling, marking and information requirements – within three and a half years from the entry into force of the proposal, packaging would have to be marked with a label containing information on its material composition. Packaging subject to a deposit and return system will also have a specific label.
• Obligations on economic operators – various obligations are being imposed on economic operators at different levels of the supply chain. For instance, manufacturers have to ensure packaging is designed, manufactured and labelled accordingly, and carry out conformity assessment procedures. Certain obligations will aim to reduce excessive packaging, with certain packaging formats being forbidden. A system for reuse of packaging would have to be in place if reusable packaging is placed on the market; it will be noted that certain economic operators have to ensure that a particular percentage of packaging is in fact reusable. Indeed a wide range of reuse and refill targets for different sectors and packaging formats is being envisaged.
• Plastic carrier bags – Member States have to achieve a sustained reduction in the consumption of lightweight plastic carrier bags on their territory so that the annual consumption does not exceed 40 lightweight plastic carrier bags per person, or the equivalent target in weight, by 31 December 2025.
• Management of packaging and of packaging waste – Each Member State has to reduce the packaging waste generated per capita, as well as set up a mandatory register of packaging producers, aiming to monitor compliance with the requirements on management of packaging and packaging waste.
• Extended producer responsibility – Producers of packaging would have extended producer responsibility for the packaging that they sell. They would be allowed to entrust a producer responsibility organisation to carry out the extended producer responsibility obligations on their behalf.
• Deposit and return systems – Deposit and return systems for beverage containers made of single use plastic will be mandatory.

The above is a very high level overview of the proposal, and is subject to change as we speak. Given the subject matter, and the onerous obligations being placed on Member States and economic operators, the proposal has already been the subject of a number of amendments and various discussions at EU level. It remains to be seen what the final version will look like, but the new legislative instrument is certainly one to watch out for.

This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr. Annalies Muscat.