FBOs under pressure - end the use of unrecyclable packaging

United Kingdom

The Local Government Association (“LGA”) has recently called for manufacturers to end the use of packaging which cannot be recycled, and to prevent it from entering the supply chain.  It has warned that manufacturers must scrap the “smorgasboard” of unrecyclable and damaging plastics used in packaging, so that local authorities can reduce the volume of waste sent to landfill and increase recycling rates.

The LGA’s appeal is particularly targeted at food business operators (“FBOs”) adding to the pressure being placed upon this sector to adopt a more sustainable approach and make effective changes to the way in which food is packaged and supplied to consumers. The LGA call reflects a wide range of current initiatives across charges,taxes and funding innovation to reduce excess packaging waste.

At the same time the European Union (“EU”) has introduced various measures to minimise waste and tackle single-use plastics as part of the drive towards a “Circular Economy”. The UK Government calls for zero avoidable waste in the 25 year Environment Plan and the Clean Growth Strategy and for a radical overhaul of the producer responsibility regime suggest that it is only a matter of time before further legislation is introduced to enforce significant changes in the way that food and beverages are packaged.  Separately HM Treasury’s confirmation this week of an avalanche of responses to the call for evidence on tackling the plastic problem (the “Call for Evidence”) shows the level of public interest and opinion. HMT will follow up on proposed policies in the Autumn including the use of taxes to discourage certain use of plastics and confirmation of a consultation on the banning of particular plastic products such as stirrers and straws.

The findings of the LGA

Analysis undertaken by the LGA reportedly found that only one third of plastic used by households in England and Wales is capable of being recycled. It found that households use 525,000 tonnes of plastic pots, tubs and trays per year but of that, only 169,145 tonnes is able to be recycled.  As such, the LGA is calling for manufacturers to work with councils to develop a plan to end the placing of unrecyclable packaging on the market.

In reporting its findings, the LGA placed particular emphasis on the plastic packaging used for food products. Examples given were the “inefficient” packaging of food made from black plastic material (i.e. microwave ready meals), which cannot be scanned by recycling machines; and packaging made from a variety of polymers (such as yoghurt pots and fruit and vegetable punnets), which need to be separated out to remove “low grade” and non-recyclable polymers such as polystyrene. The use of such plastics reportedly makes recycling more challenging, therefore hindering recycling efforts.

LGA’s calls for change

The LGA states that councils have done all they can to tackle this issue and as such, they are now calling for the Government to consider a ban on low-grade plastics; develop a plan that ensures that recyclable packaging is used where possible; and require producers and manufacturers to contribute to the cost of collection or disposal.

 “We’ve been calling for producers of unrecyclable material to develop a plan to stop this from entering the environment for years. That needs to happen urgently, but the Government should now consider banning low-grade plastics, particularly those for single use, in order to increase recycling. If manufacturers don’t want to get serious about producing material which can be recycled and protecting our environment, then they should at least contribute towards the cost that local taxpayers have to pay to clear it up”. (Cllr Judith Blake, the LGA Environment spokesperson).

Reform of the Producer Responsibility regime

The LGA’s calls for a greater contribution from manufacturers towards collection/disposal costs ties in with the pressure to reform the Producer Responsibility regime. This follows the publication of a critical report from the National Audit Office (“NAO”), which indicated that figures showing packaging recycling performance in recent years may not be ‘robust’, due to the potential existence of fraud and errors within the system.

The NAO concluded that whilst it is clear that recycling rates have increased over the lifetime of the packaging obligation system, it appears to have evolved into a comfortable way for the Government to meet targets without facing up to the underlying recycling issues. The NAO found that the Government has no evidence that the system has encouraged companies to minimise packaging or make it easy to recycle, and it relies on exporting materials to other parts of the world without adequate checks to ensure this material is actually recycled, without consideration of whether other countries will continue to accept it in the long-term. The recent change to the acceptance criteria of recyclables by China is informative in this regard. 

The Government has acknowledged that change is needed and has commenced a review into how a reformed regime might work. DEFRA’s awaited Resources and Waste Strategy (anticipated this year) may shed further light on this. FBOs should follow prospective changes closely (and input into any relevant consultations) as any recommendations could have a potentially significant impact in terms of achieving future compliance as well as increasing the financial burden associated with food packaging.

A Circular Economy

As part of the drive towards a Circular Economy (“an attempt to “close the loop” of product lifecycles through greater re-cycling and re-use to bring benefits for both the environment and the economy” –  see (here) for an overview of the Circular Economy package) the proposals will also impact how FBOs package their food in future. For example the European Commission’s proposal for a Directive on the reduction of the impact of certain plastic products on the environment (which is aligned with the overarching EU Plastics Strategy). This sets out proposals that would affect the regulation of plastic food contact materials in the EU with a potentially significant impact upon FBOs. These include requirements for Member States to:

  • take measures to achieve a significant reduction of the use of plastic containers for beverages and food;
  • impose a ban on single-use plastic cutlery, plates, straws, and beverage stirrers;
  • require producers to help cover the cost of waste management, clean-up, and awareness raising measures for food containers, packets and wrappers, drinks containers and cups and lightweight plastic bags; and
  • establish extended producer responsibility schemes, which may include litter clean-up costs.

If the proposal advances, Member States will have two years from the publication of the final Directive to transpose it into national legislation. The timing will be significant both as to how the UK would implement this and whether the proposals will be adopted without variation in light of Brexit.

Resilience planning for the future

This week HMT’s summary of responses to the Call For Evidence on tacking the plastic problem noted that the scale of responses was the largest to any call for evidence in HMT’s history indicating the level of interest. HMT intends to pursue the most promising policies in more depth and announcements will be made in the Budget Statement. This includes ideas to use tax to shift demand towards using recycled plastic in manufacturing, to encourage more sustainable design of plastic items and discourage those that prove difficult to recycle such as carbon black plastics, to reduce demand for commonly littered single use plastic items, including single-use coffee cups and takeaway boxes, and to ensure the right incentives are in place to encourage recycling of waste that is currently incinerated. In addition there is confirmation on a proposed consultation on banning plastic stirrers and straws. There is a stated recognition of the need to consider the cumulative impact of policies and proposed regulations around bans, sale restrictions or a deposit return scheme, as well as the impact of different interventions across the UK.

Rather than “wait and see” many FBOs are already taking action to identify innovative ways to address the issue of single-use and “low grade” plastics in the packaging and supply of their food and beverage products. There have been a range of announcements over the summer from manufacturers and retailers committing to voluntary reductions in the use of  plastic in packaging, the elimination of the use of non – recyclable black plastic and the launch of plastic bottles and packaging which are 100% recyclable.

As the pressure on FBOs to take such measures increases we will see if, like the sugar tax, the greatest impact on the packaging and distribution of food products is the threat of future legislative changes rather than any tax or charge itself.