New UK and EU extended producer responsibility for packaging requirements

Introduction

The UK government recently introduced amendments to the Packaging Waste (Data Reporting) (England) Regulations 2023 (the UK Packaging Regulations) (see our previous article) and made important announcements on the extended producer responsibility for packaging scheme (the EPR Packaging Scheme). The EU is also considering introducing significant changes to the current EU regime under the EU Packaging and Packaging Waste Directive (as amended) (the EU Directive).

In this article, we provide an update on the status of the EPR Packaging Scheme and obligations under the UK Packaging Regulations. We also consider the developments in the EU.  

Background

The UK Packaging Regulations – which came into effect in February 2023 – introduced new requirements for packaging producers to collect and report data on the amount and type of packaging they place on the market. The UK Packaging Regulations form part of the EPR Packaging Scheme, a UK-wide policy designed to ensure that packaging producers take responsibility for the environmental impact of their operations by requiring the payment of a fee based on the cost of recycling packaging placed on the market.  

Amendments to the UK Packaging Regulations were introduced in June 2023 by the Packaging Waste (Data Reporting) (England) (Amendment) Regulations 2023 (the Amendment Regulations). The Amendment Regulations are designed to ensure that packaging producers submit all the information required under the EPR Packaging Scheme. 

UK developments

The key changes introduced by the Amendment Regulations can be summarised as follows:  

• Clarification of the obligated producer: the amendments clarify who the obligated producer is in situations when packaging is imported into the UK and subsequently discarded by the importer; when packaging carries two or more brands; and when packaging is used by brands that sell products that include other brands.
• Simplification of the data reporting: the requirements to report data for reusable and refillable packaging have been simplified. Producers that have instituted re-use systems only need to report on such packaging in the year it is first supplied. 
• New offence: the amendments create a new offence which is committed where a person fails to give the Environment Agency (EA) the required assistance or information when the EA exercises its enforcement powers. 
• Additional liability: where an offence is committed by a person due to the act or default of some other person, that other person may also be guilty of the offence. 

On 25 July 2023, the Department for Environment Food and Rural Affairs (Defra) announced that the introduction of packaging fees will be deferred by one year due to the current economic pressures facing consumers and business. Payments to local authorities, which were due to start in October 2024, will now start in October 2025. However, the other timescales remain in place, meaning that producers will still have to report packaging data for 2023. 

In relation to deposit return schemes (DRSs), the UK government is currently drafting regulations for a DRS for in-scope drinks containers and it is anticipated that these draft regulations will be published by the end of 2023. The new scheme is set to be introduced in 2025. 

It is important to note that failure to comply with the requirements under the UK Packaging Regulations may constitute an offence. This may result in civil sanctions being imposed and, in respect of the most serious breaches, non-compliant businesses (including directors and senior managers) may face criminal prosecution. 

EU developments

Like the UK Packaging Regulations, the EU Directive aims to ensure businesses that manufacture, use and handle packaging are responsible for its reduction, recycling and recovery. The EU Directive covers all packaging and packaging waste placed on the EU market (whether industrial, commercial, office, shop, service and household) from all sources. Member States are required to establish EPR schemes for all packaging by the end of 2024.

In November 2022, the European Commission adopted a proposal for a new regulation to review and repeal the EU Directive. The revision aims to:

• Prevent the generation of packaging waste, reducing its quantity and promoting reuse and refill; 
• Ensure all packaging placed on EU market is recyclable by 2030; and 
• Increase the use of recycled plastics in packaging, enabling more high-quality recycling. 

The proposals would also require Member States to introduce DRSs by 1 January 2029 for all single use plastics and metal beverage containers. 

Going forward

In the UK, Defra has recently opened a consultation on the draft Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024 which aim to implement the EPR Packaging Scheme in full in the UK. The consultation closes in October 2023. In relation to the EU proposals, these are undergoing the ordinary legislative procedure for approval (this usually lasts around 2 years but may take longer). 

Conclusion 

With the introduction of new collection and reporting requirements relating to packaging and the future implementation of the EPR Packaging Scheme in the UK (with similar moves happening in the EU), organisations that deal with packaging in these markets will need to ensure they comply with the relevant data collection and reporting requirements. 

These new rules present an opportunity for businesses to consider adopting more sustainable practices throughout the entire lifecycle of products and product end-of-life management. These rules also encourage exploring eco-friendly materials and implementing efficient waste reduction strategies.

If you would like further information about this topic and how the new rules may impact your business, please contact the Norton Rose Fulbright Environment team. 

With thanks to Dani Bass for her contribution