Packaging producers: Are you ready for the new requirements?

Introduction

New requirements for packaging producers to collect and report data on the amount and type of packaging they place on the market were introduced recently pursuant to the Packaging Waste (Data Reporting) (England) Regulations 2023 (the Regulations). The Regulations apply to England only (similar regulations are in force in Scotland and Northern Ireland) and together they form part of the framework of the Extended Producer Responsibility for packaging scheme (the EPR Packaging Scheme), a UK-wide policy due to be introduced in 2024. The EPR Packaging Scheme is designed to ensure packaging producers take responsibility for the environmental impact of their operations and require the payment of a fee based on the data. In April 2023, the government published  tidy-up amendments to the Regulations that are expected to come into force on 30 June 2023, including minor changes on the way producers are expected to report their data.

The Obligations

The Regulations apply to a wide group of packaging producers (including brand owners, packers/fillers, importers, distributors, online marketplace operators, service providers and sellers) established in England.

The requirements to which a producer is subject depends on its size. The Regulations distinguish between ‘large producers’ and ‘small producers’, as follows: 

• Large producers:  
  (a) a turnover of more than £2 million; and
  (b) handle more than 50 tonnes of packaging or packaging materials in total.
• Small producers:
  (a) a turnover of more than £1 million; and 
  (b) handle more than 25 tonnes of packaging or packaging materials in total.

The Regulations include provisions to ensure that smaller packaging producers that are part of a group company structure that together would meet the above detailed thresholds are also subject to the new requirements.

Data collection

Small producers are required to maintain records of the total weight of packaging they have supplied and a breakdown of the type of packaging. Large producers are required to collect a wider pool of information, including the packaging waste they have collected and sent for recycling. The relevant period for collecting data is the period between 28 February – 31 December 2023 and, in subsequent years, the 12-month period starting on 1 January.

Data reporting

Large producers are required to report packaging data to the Environment Agency (EA) twice a year, with the first reporting to be submitted by 1 October 2023. The data that will need to be reported varies depending on the type of producer. However, all large producers need to report general information such as the company’s name and contact details (including details of the individual responsible for dealing with EA enquiries) and each class of producer to which the entity belongs. Small producers will be required to report their data from 2024.

Practical considerations

Producers can either join an official compliance scheme or register in the National Packaging Waste Database. If a producer joins a compliance scheme, the scheme will be responsible for registering it with the correct environmental regulator, collecting evidence of compliance and submitting a certificate of compliance every year. The data will then be used to calculate the fee that the producer will be required to pay to cover the wider costs associated with processing the packaging as waste. Details of these requirements are yet to be formally published and we expect them to be revealed as part of the wider EPR Packaging Scheme announcements in the coming year.

Failure to comply with the requirements set out in the Regulations can result in civil sanctions, and potentially criminal prosecutions in respect of the most serious breaches. Individuals such as directors and senior managers may also be personally liable in the most serious circumstances. 

The Regulations are only expected to be in force for around a year, after which they will be replaced by the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2023 which will set out the full EPR Packaging Scheme. The Regulations are therefore designed to ensure businesses begin collecting and reporting data in readiness for the introduction of the scheme in full.

Commentary

The Regulations are the first step towards the implementation of the EPR Packaging Scheme. It is anticipated that producers will be responsible for paying approximately £1.7 billion per year in packaging costs throughout the packaging’s lifecycle under this scheme. 

The UK is not alone in these efforts, with the EU proposing a new target to make all packaging fully recyclable by 2030 and reduce packaging waste by 15%. 

With the Regulations now in force, in-scope businesses will need to have a system in place to collect and record data on packaging and, looking ahead, they may also need to review their approach to waste management and consider moving towards more sustainable practices.

If you have any questions or would like any further information on these issues, please contact the Norton Rose Fulbright Environment team.