Summary

The Packaging (Essential Requirements) Regulations 2015 (“the 2015 Regulations”) take effect on 01 October 2015 and the 2003 Regulations of the same name are revoked.  The 2015 Regulations are largely a consolidation of changes made to the Packaging and Packaging Waste Directive and follow a commitment made under the Red Tape Challenge.  The substantive requirements in relation to the essential requirements for packaging are not changed and continue to mirror the relevant provisions of the Directive. 

On 05 October 2015 The Single Use Carrier Bags Charges (England) Order 2015 (2015 No 776) (“the Carrier Bags Order”) comes into effect.  England is the last to take this type of action as Wales has had legislation requiring upfront charging for carrier bags in effect since October 2011.  An 80% reduction in consumption of single use plastic bags has been reported since the legislation came into effect in Wales.   Northern Ireland has had similar legislation since April 2013 and Scotland since October 2014.  The obligations in England will apply to large retailers (“sellers”) who will need to charge at least 5p for single use carrier bags.   Money collected can be used to cover reasonable costs of the retailer to comply with the law with the balance expected to be donated to “good causes.”  Government guidance notes that medium and small retailers are free to charge voluntarily.

Followers of initiatives on waste and producer responsibility will be aware that the EU Circular Economy package was delayed after an initial package of proposals was withdrawn.  A public consultation on a new package concluded in August 2015 and the text of proposals for Commission adoption is anticipated in late 2015.  The proposals will affect economic actors across product chains and not be limited to waste issues. 

The Packaging (Essential Requirements) Regulations 2015

The 2015 Regulations implement part of Directive 94/62/EC on packaging and packaging waste (“the Packaging and Packaging Waste Directive”).  The 2015 Regulations take effect on 01 October 2015 and the 2003 Regulations of the same name are revoked.  New Government Guidance Notes for the 2015 Regulations have been published by the Department for Business Innovation & Skills. 

The 2015 Regulations are largely a consolidation of changes made to the Packaging and Packaging Waste Directive so the substantive requirements regarding the qualities of packaging placed on the market are not changed and continue to mirror the relevant provisions of the Directive, Articles 9 and 11 and Annex II in particular.  

The Essential Requirements Regulations are possibly less well known than the Producer Responsibility Obligations (Packaging Waste) Regulations 2007.  Those regulations implement another part of the Directive dealing with obligations on producers and others to recover and recycle packaging waste and those requirements are unchanged by the 2015 Regulations.

The 2015 Regulations also include definitions of “plastic” and “plastic carrier bag” which have been taken from a 2015 amendment to the Packaging and Packaging Waste Directive in relation to consumption of lightweight plastic carrier bags.   Member States will be required to take measures to deliver annual consumption levels per person (not exceeding 90 lightweight plastic carrier bags per person by 31 December 2019) and/or (ii) adoption of instruments so that by 31 December 2018 lightweight plastic carrier bags are not provided free of charge at the point of sale of goods or products, unless equally effective instruments are implemented.  

However, on 5 October 2015, The Single Use Carrier Bags Charges (England) Order 2015 (2015 No 776) (“the Order”) comes into effect requiring large retailers to charge at least 5p for each lightweight carrier bag.  England is last to put provisions addressing upfront charging for lightweight plastic carrier bags into effect with Wales, Northern Ireland and Scotland all having provisions in place.  Wales and Northern Ireland have been able to point to significant reductions in consumption since the legislation took effect.

Packaging and Packaging Waste Directive - the “essential requirements” and heavy metal concentrations are not changed

The Packaging and Packaging Waste Directive specifies “essential requirements” in relation to the composition and the reusable and recoverable (including recyclable) nature of packaging.  These are the provisions that are often invoked to address concerns about potentially excessive packaging of consumer products.  In addition, the Directive specifies that concentration levels of certain heavy metals must not exceed 100ppm based on the sum of the concentration levels either in the packaging or in any of its packaging components.  (There are some exemptions from the heavy metal concentrations for glass packaging and plastic crates and pallets.)

The duties in the 2015 Regulations apply to anyone who is a “responsible person” in relation to packaging being placed on the EU market.  Responsible person is defined to include, amongst others, a person who is responsible for packing or filling products into packaging or someone who has presented themself as responsible by labelling filled packaging with their own name or trademark. 

In addition to consolidation, the 2015 Regulations clarify some of the language used in the 2003 Regulations and update some references to other legislation including the potential of unlimited fines being imposed upon conviction in the Magistrates’ Court.   There is a provision for the Secretary of State to carry out a review of the effect of the 2015 Regulations from time to time, including having regard to how they are implemented in other Member States.   The first review and report on it must be published within five years from 01 October 2015. 

Single Use Carrier Bags – England is the last to impose upfront charging

Amendments to the Packaging and Packaging Waste Directive (Directive 2015/720 as regards reducing the consumption of lightweight plastic carrier bags) require Member States to take measures to achieve a “sustained reduction in the consumption of lightweight plastic carrier bags on their territory”.

Measures must include either or both of (i) measures to ensure that the annual consumption level does not exceed 90 lightweight plastic carrier bags per person by 31 December 2019 and (ii) adoption of instruments so that by 31 December 2018 lightweight plastic carrier bags are not provided free of charge at the point of sale of goods or products, unless equally effective instruments are implemented.   “Lightweight plastic carrier bags” are defined as plastic carrier bags with a wall thickness below 50 microns.  There is also provision for the Commission to review the position regarding “very lightweight plastic carrier bags” by 27 May 2017.

The UK has already been taking action in relation to plastic carrier bags.  The Single Use Carrier Bags Charges (England) Order 2015 (2015 No 776) (“the Order”) comes into effect on 05 October 2015.  Wales has had legislation requiring upfront charging for carrier bags in effect since October 2011.  An 80% reduction in consumption of single use plastic bags by charging consumers upfront has been reported since the legislation came into effect in Wales.   Northern Ireland has had similar legislation since April 2013 and Scotland since October 2014.

The Order is made under the Climate Change Act 2008 and although it is part of the system to reduce waste, the Department of Environment, Food & Rural Affairs (“Defra”) claim that the measure will deliver a positive benefit of over £780 million which includes savings from reduced littering, waste management costs and CO2 equivalent emissions.

In summary, obligations in England will apply to large retailers (“sellers”) who will need to charge at least 5p for single use carrier bags.  These are defined as unused bags made of “lightweight plastic materials with handles, other than an excluded bag.”   “Lightweight plastic material” refers to thickness of not greater than 70 microns and at present there is no exemption for biodegradable bags.  Money collected can be used to cover reasonable costs of the retailer to comply with the legislation (e.g. changes to till systems and training staff but does not include the cost of the bags).  The balance is expected to be donated to “good causes.” 

The Order also includes record keeping requirements and for every bag that is charged for records must be kept and sent to Defra.   Members of the public can request copies of carrier bag records and the Order requires a response within 28 days.

Failure to comply with requirements under the Order can result in enforcement action by the local authority where the shop is based (referred to as the “administrator”).  Enforcement measures can include fixed monetary penalties, variable monetary penalties of up to £5000 for breaches relating to supply and record keeping and £20,000 for giving false or misleading information to an administrator.  Non-compliance penalties of up to £5000 can also be imposed.

Government guidance notes that medium and small retailers are free to charge voluntarily.

Still watching for the Circular Economy package

Followers of initiatives on waste and producer responsibility will be aware that the EU Circular Economy  package was delayed after an initial package of proposals was withdrawn.  The proposals will not be all about packaging or even waste as discussion and consultation highlighted a will for a more ambitious package including a much wider focus on resource efficiency and synergies with other policies such as product policies or development of markets for secondary raw material.    A public consultation on the new package concluded in August 2015 and the text of proposals is anticipated in late 2015 for Commission adoption.  The proposals will affect economic actors across product chains and not be limited to waste issues. 

References:  

The Single Use Carrier Bags Charge (Wales) Regulations 2010 (2010 No 2880) (W.238)

The Single Use Carrier Bags Charge Regulations (Northern Ireland) 2013 (2013 No.4)

The Single Use Carrier Bags Charge (Scotland) Regulations 2014 (2014 No.161)