You are here: Home | News | Packaging waste legislation - Good things come in small packages
Packaging waste legislation - Good things come in small packages
The Local Government Association has argued that supermarkets should pay towards the collection and recycling of their packaging as an incentive to reduce the amount of packaging used.
By Elizabeth Hyde
There is however legislation currently in force which has been designed to restrict the amount of packaging used by companies. UK packaging legislation is driven by the current EU Packaging Directive 94/62/EC which is concerned with minimising the creation of packaging waste material and promoting recovery, re-use and recycling of packaging. These measures have been in force in the UK in one form or another since March 1997 and are currently implemented through the Packaging (Essential Requirements) Regulations 2003 (“the Essential Requirements Regulations”) and the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 (“the Producer Responsibility Regulations”).Both sets of regulations have led to decreases in the amount of packaging used and many businesses are working hard to use less material than they would have done a few years ago. In the long run, it is envisaged that retailers will save money if they reduce the amount of packaging utilised.
Definition of packaging
The definition of “packaging" is
The definition applies to: (1) sales and primary packaging, ie the bag and box containing your breakfast cereal; (2) grouped or secondary packaging, ie the larger box used contain a quantity of cereal boxes; and (3) transport packaging, ie the material used to hold a number of the larger boxes together when shipped from the factory, eg pallets and wrapping materials. There are some exemptions from this definition but these generally relate to packaging manufactured before December 1994.
The Essential Requirements Regulations provide that the volume and weight of packaging must be limited to the minimum amount necessary to maintain levels of safety, hygiene and acceptance for the packed product and for the consumer. Packaging must also be manufactured so as to permit its reuse or recovery and that noxious or hazardous substances in packaging must be minimised.
Reducing Packaging - are you obliged to comply?
The Essential Requirements Regulations apply to businesses that are responsible for:
• packing products or filling packaging;
• who affix their name, trade mark or other distinctive mark on packaging (even though they may not have directly packed the product);
• have reconditioned packaging for reuse (e.g. where packaging has been remanufactured, repainted or altered for a different use it will be considered “new” packaging); or
• have imported the packaging.
All businesses involved in the 'retail chain' (from the importer right through to the supermarket) may be caught. The companies that are most likely to be in the firing line are those who place their own brand or trade mark on the packaging.
A defence is available where a company can show that it took all “reasonable steps and exercised all due diligence to avoid committing the offence”. Invoking this defence will include showing that the offence was caused by the act or default of another (eg the packer of the product) or due to reliance on information given by another (eg a “guarantee” that the packaging was compliant. Companies will only be able to rely on information supplied by another where it is reasonable to do so. In particular, the Court will consider what steps were taken to verify the information supplied.
Retailers can face fines of up to £5,000 per offence in the Magistrates' Court or an unlimited fine in the Crown Court for the most serious offences. For example, a food manufacturer was fined £5,000 and ordered to pay over £2,000 in costs after packing chocolate fingers in a tin significantly larger than was necessary.
The Essential Requirements Regulations do currently contain some loopholes which mean that Trading Standards have not been able to enforce them with the vigour they would have liked. This has not gone unnoticed by a number of environmental pressure groups.
At present, the loopholes are being addressed by a government campaign, which is encouraging consumers to “vote with their wallet” and only buy produce loose or products contained in minimal packaging. Many producers are therefore taking steps to reduce the amount of packaging used. Producers not taking these steps should beware. The existing loopholes will almost certainly be closed. At that point, enforcement will be made easier.
Although there have only been a handful of successful prosecutions under the Essential Requirements Regulations, many retailers are now subject to an additional set of regulations - the Producer Responsibility Regulations. The Environment Agency is actively prosecuting companies for failing to comply with these Regulations and there has been an increasing trend for Courts to impose higher fines.
Recovering and recycling packaging waste - the basics
Businesses have been obliged since 1997 to recover and recycle certain levels of packaging and packaging waste. The Producer Responsibility Regulations require applicable businesses to:
• register their recovery/recycling obligations directly with the Environment Agency or via a Compliance Scheme;
• to recover and recycle specified tonnages of packaging waste each year; and
• to furnish a Certificate of Compliance confirming that the recovery and recycling obligations have been achieved.
Recovering and recycling packaging waste - are you obliged to comply?
Businesses which handle in aggregate more than 50 tonnes of packaging or packaging waste per year and which have a turnover of more than £2m per year are obliged to comply, if they fall in to one of the following categories:
• manufacturers (those who manufacturer raw material for packaging)
• converters (those who use or modify packaging materials in the production or formation of packaging)
• packers/fillers (those who place goods or products into packaging)
• sellers (those who supply packaging to a user or a consumer of that packaging)
• service providers (businesses that lease/hire out packaging such as wooden/plastic pallets to other companies)
• importers (import packaging/packaging materials/packaged goods into the UK).
For example, the manufacturer of raw materials for packaging for cereal boxes will be caught. These packaging materials will then be sold to a converter in order that they may be converted into cereal boxes. He will be obliged to comply. Once the converter has produced the appropriate packaging, this will be then sold to the companies who pack the cereal into the boxes. They must comply. Finally, the retailers who then sell the cereal boxes to a consumer will also be caught.
The Producer Responsibility Regulations set a formula for how much packaging waste must be recovered or recycled. It is important to note that those caught under the regulations do not in fact have to recover and recycle their own packaging waste. They must merely demonstrate that they have recovered or recycled an equivalent amount of packaging waste that they handled or supplied in the previous year.
Over the last year, the Environment Agency has adopted a tougher stance in respect of non-compliance. The Agency now recommends prosecution in all cases of non-compliance, even where those companies were unaware of their obligations. Each breach of the Producer Responsibility Regulations carries with it a fine of up to £5,000 in the Magistrates' Court or an unlimited fine in the Crown Court for the most serious cases.
Courts are increasingly looking to fine companies a sum of money which reflects the financial 'savings' made by such companies in failing to comply. For example, on 15 November 2007, a large drinks manufacturer was ordered to pay almost £26,000 by a Magistrates' Court for failing to comply with the Producer Responsibility Regulations for a three year period from 2003 to 2005.
Although both sets of Regulations have reduced the amount of packaging used and increased recycling and recovery of packaging, critics argue that more still needs to be done to reduce the amount of packaging used in the first place. Given the Environment Agency's hard line against those who fail to comply with Regulations, retailers and manufacturers are advised to take immediate steps to comply to minimise their criminal exposure and foster their green credentials.
Tagged as: eversheds | packaging | waste
Should your colleagues be reading the Retail Bulletin? Let them know about us.