At some point, most of us will have been surprised at the amount of packaging certain items arrive in, and perhaps even been annoyed at individual pieces of fruit tightly wrapped in shrink-wrap plastic; our nails as well as the environment paying the price for it. Now, in a tightening of the rules, the EU Packaging Directive has been amended to make producers think not only outside the box, but without the box altogether.
Uniform diversity
Making slight changes to the rules on the recycling of waste packaging could potentially give some countries a competitive advantage and enable insight from the experience gained from different approaches, although it also risks creating divergence in the approach to dealing with packaging waste across the Single Market. The Packaging Directive 94/62/EC, or to give it its full name, the European Parliament and Council Directive 94/62/EC of 20 December 1994, seeks to remedy this, and the latest amended version, which is now in force, will have ramifications for businesses who reside or trade within the European Union and EEA countries.
Harmonised recycling
There are two main justifications for the EU Packaging Directive:
Firstly, the European Commission aims to “harmonise” packaging regulation – i.e. to enforce a uniform approach within the internal market – because, as it claims, “…discrepancies create legal uncertainty for businesses, leading to lower investment in innovative and environment-friendly packaging and new circular business models.” There is no evidence quoted to support this, and indeed the opposite might just as likely be the case, but for businesses this approach does at least provide a degree of certainty for planning.
The second main justification is the environment; in particular, the need to use less natural resources and to deal with the recycling and/or disposal of the waste product after the first-time use of an item of packaging. The Commission claims that “[packaging] is one of the main users of virgin materials (40 % of plastics and 50 % of paper used in the EU is destined for packaging) and accounts for 36 % of municipal solid waste.” The regulation seeks to play its part in fulfilling the European Green Deal 7 and contribute to the so-called EU circular economy action plan.
Reducing packaging waste
“The specific objectives are: (i) to reduce the generation of packaging waste; (ii) to promote a circular economy for packaging in a cost-effective manner; and (iii) to promote the use of recycled content in packaging.”
Since the implementation of the original regulation in 1994 there have been several amendments and updates – such as the Plastic Bag Directive in 2015 and an amendment to reduce packaging waste in 2018. The current amended version from November 2022 significantly increases the responsibility of business to prevent packaging waste and encourage the promotion of reuse, recycling and various other methods for putting old packaging to use rather than adding it to the mountain of rubbish generated by our consumer society, or as the regulation text states:
Why amend it now?
In its justification for amending the regulation, the EU Commission writes that the usage of packaging has increased disproportionally compared to the growth in the economy over the past few years. In other words, the use of packaging is growing at a faster pace than GDP.
They do not speculate as to the possible reasons for this, although it seems obvious that the dramatic increase in home delivery services and e-commerce is at least partly to blame. After all, who hasn’t got an anecdote about a small item being delivered in a large box with a smaller box inside, with lots of filler-material to keep it safe, and with the item itself ensconced like the fragile egg of some rare bird inside a box inside the box; a veritable matryoshka doll. Many would probably welcome a slimline variant of this.
What does it mean for businesses?
The scope of the regulation is “all packaging placed on the European market and all packaging waste, whether it is used or released at industrial, commercial, office, shop, service, household or any other level, regardless of the material used.”
The EU Packaging Directive includes a variety of very detailed targets for member countries to reach, such as the recycling of 65% of all packaging by 2025 and 70% by 2030. But a key point for businesses to notice is section (93) of the amended regulation, which states:
“To implement the polluter pays principle, it is appropriate to lay the obligations for the management of packaging waste on producers, which includes any manufacturer, importer or distributor, who […] makes available packaging for the first time within a territory of a Member States on a professional basis under its own name or trademark.”
So, whether you make and sell or import goods to any country within the EU and EEA, you count as a “producer” of packaging if your operations introduce a new bit of packaging to the merchandise, and you take on the responsibility for what happens to this packaging throughout its lifetime. This is called extended producer responsibility (ERP) in the regulation and includes “…the rule that financial contributions to be paid by producers to comply with their extended producer responsibility obligations…” based on “the recyclability performance”.
Labelling and languages
Most businesses who trade within EU and EEA countries will be aware of the various requirements for labelling and in some cases for instructions and user manuals to be produced in languages that can be understood in all the countries where the products are traded, such as Directive 42, which says, “All machinery must be accompanied by instructions in the official Community language or languages of the Member State in which it is placed on the market and/or put into service. The instructions accompanying the machinery must be either ‘Original instructions’ or a ‘Translation of the original instructions’, in which case the translation must be accompanied by the original instructions.”
Similarly, the Packaging Directive also sets out certain requirements for the labelling of packaging.
A declaration of conformity, stating that the packaging fulfils the requirements set out in Articles 5 to 11 must be made, and “…shall be translated into the language or languages required by the Member State in which the packaging is placed on the market or made available on the market.”
Looking more closely at the mentioned Article 11 we also find the requirement that “…packaging is marked with a label containing information on its material composition in order to facilitate consumer sorting.” The regulation stipulates various detailed instructions for member countries on how the markings on the packaging must be coordinated with the waste disposal units and a tracking system with the use of QR codes and consumer instructions used to monitor the exact level of recycling of the packaging. The data from this will have a bearing on the financial liability of the “producer”, i.e. the business who introduced the particular packaging to the market.
All wrapped up
It is clear that if your business introduces new packaging in the process of bringing your product to market, you may be in line for increased liability depending on how much further this system goes than what is already in existence in your country (Sweden, for example, has the FTI-system, which will fulfil some of the requirements of this amended regulation already).
It remains to be seen if businesses will indeed start thinking without the box as well as outside it, and if our fingernails as well as our paper bins will be happier as a result.
