On 18 February 2019, four consultations relating to packaging, plastic use and waste management were launched with major implications for producers, manufacturers, retailers, local authorities, the waste management sector and consumers. The consultations are open until 12 and 13 May and relate to a deposit return scheme for beverage containers (“DRS”) for England, Wales and Northern Ireland; a UK tax on plastic packaging imported or manufactured in the UK which does not contain at least 30% recycled content; the reform of the UK-wide producer responsibility regime for packaging; and ways to increase the recycling of municipal waste from households and businesses in England.
The proposals set out radical measures to overhaul the packaging waste system and trigger behavioural change in the use and treatment of resources. They aim to place the costs of managing environmental impacts onto producers. Below we examine the key proposals. Close consideration should be made to the consultation documents and the impact assessments accompanying them.
A tax on plastic packaging with less than 30% recycled content
The consultation follows a call for evidence on single-use plastic waste in 2018 which highlighted that recycled plastic is often more expensive than virgin plastic. As a result, HM Treasury is attempting to switch the economic drivers involved in the production of plastic packaging to incentivise the greater use of recycled plastic and to reduce resources and plastic waste.
The proposed tax would apply to all plastic packaging manufactured in the UK and unfilled plastic packaging imported into the UK from 1 April 2022. It would only apply to plastic packaging with less than 30% recycled content and unfilled plastic packaging that is exported would not be subject to the tax.
The consultation explores possible ways in which 'plastic packaging' and ‘recycled content’ can be defined to finalise the scope of materials subject to the tax. The Government proposes that the tax would be UK-wide and charged on the full weight of the packaging product, at a flat rate set per tonne of packaging material. The rate of the tax will be announced by the Chancellor and legislated in a future Finance Bill which is subject to review on an ongoing basis. The Government has stated that the tax rate will be one which is significant enough to change manufacturer behaviour and to drive demand for recycled plastic.
In cases where there is one manufacturer involved in the manufacturing process, the tax would be applied when the packaging product or component is made available for use or onward sale. Where there are multiple manufacturers involved in a process, the consultation explores possible options for the point at when the tax should become payable, whether this be at the first point the manufacturer supplies the packaging to another manufacturer for further processing, or at the point when the manufacturer sells or supplies plastic packaging to be filled, packed or assembled.
The Government is also considering extending the tax liability on a “joint and several” basis to other businesses in the supply chain if it is not accounted for at the appropriate time. This could include manufacturers, pack-fillers, brands and retailers. The tax would be charged on businesses that knew or had reasonable grounds to suspect the tax had not been accounted for.
The consultation closes on 12 May 2019. The Treasury has indicated it intends to publish a summary of responses to the consultation within 12 weeks of closing, therefore being before 4 August 2019. Next steps will be set out at the 2019 Budget held in the Autumn.
Reform of the UK producer responsibility packaging waste system
Under the current system, obligated packaging producers are required to meet certain recovery and recycling targets set by Government. Producers must obtain evidence of recycling from accredited reprocessors or exporters to prove they have met their recycling obligation. This evidence is known as Packaging Waste Recovery Notes (PRN) or Packaging Waste Export Recovery Notes (PERNs). The impact assessment notes that in general, the current system is not comprehensive enough, lacks transparency, and falls short of stated principles for extended producer responsibility so there are a raft of proposals to transform the UK-wide system. These include new packaging waste recycling targets for 2025 and 2030; product design incentives such as modulated placed on the market fees or a deposit fee (where producers pay a deposit which is redeemable if they are able to prove that the equivalent of the packaging that they have placed on the market has been recycled); strengthened accreditation and other arrangements for reprocessors and mandatory labelling on packaging to indicate its recyclability. The role of operators of online marketplaces is queried suggesting they should take the legal responsibility for the packaging on products for which they facilitate the import. The headline proposal, however, is that producers will be required to cover the full net cost of managing their packaging waste.
Under the existing regime, producers cover around 10% of the cost of managing packaging waste. By making producers cover the full net cost, the Government aims to incentivize producers to use less packaging and switch to packaging that is easier to recycle. Under the proposals, the ‘full net cost’ would cover:
- collecting, transporting, sorting and treating packaging waste for recycling;
- treating and disposing packaging waste that cannot be recycled;
- the cost of providing information to consumers on recycling packaging waste and anti-littering;
- cleaning up littered and fly-tipped packaging waste;
- the collection and reporting of relevant packaging waste management data; and
- compliance monitoring by the regulator.
It is proposed that the full net cost recovery will apply to all ‘consumer-facing’ packaging. This includes all packaging waste that arises from households and similar packaging waste that arises at commercial and public sector outlets, such as restaurants and offices. As a result, packaging waste for commercial/industrial applications, such as delivery and transit packaging like stretch wrap, outer packaging and pallets, commonly used in ‘business to business’ transactions, is out of scope of the ‘full net cost’ proposals. The cost of managing this type of waste will continue to be borne directly by businesses who are typically obligated under the existing regulations. This waste can also be sold for recycling. Furthermore, the consultation invites views on whether any materials which are caught by a potential DRS for beverage containers should be out of scope of the EPR system for packaging waste.
The consultation also suggests reforming the ‘shared responsibility’ principle for producers meeting packaging waste obligations, which could mean that the full net cost could land solely on one producer.
A Deposit Return Scheme for beverage containers in England, Wales and Northern Ireland
The consultation, jointly undertaken by DEFRA, the Welsh Government and DAERA, follows a separate consultation by the Scottish Government on establishing a DRS in Scotland which closed on 25 September 2018. The consultation paper states the UK Government will work closely with devolved administrations in this policy area, but at this stage there is no confirmation that the scheme will combine with the proposed Scottish DRS.
It is proposed that a deposit is added to the price of beverages in certain in-scope drinks containers at the point of purchase. This deposit would then be redeemed by the consumer when the empty drinks container is returned to designated return points. Similar schemes exist globally and have achieved positive collection and recycling rates. Materials such as PET and HDPE plastic bottles, steel and aluminium cans, and glass bottles are being considered. Two models are proposed in relation to the size of containers covered: an ‘all in’ model and an ‘on the go’ model. The ‘all in’ model would not place any restrictions on the size of drinks containers in-scope of a DRS and would therefore capture a large amount of drinks containers on the market. The ‘on the go’ model would restrict the drinks containers in-scope to those less than 750ml in size and would exclude multipack containers.
It is proposed that the amount of the deposit is set by the Government in consultation with the Deposit Management Organisation (DMO), a newly established body, funded by producers, which would administer and operate the scheme. Questions are posed as to whether the deposit should be a flat rate or should vary according to material.
Consistency in Household and Business Recycling Collections in England
The proposals aim to increase recycling in England targeting household waste and waste from businesses. In relation to households, the Government proposes introducing a standardised set of recyclable materials which should be collected from households by local authorities across England. By standardising what materials can be collected, the Government hopes to remove confusion and complexity from the recycling process.
For businesses and public sector organisations, the Government proposes to legislate to ensure that where a business or public sector organisation produces recyclable waste that is similar in nature to household waste, it is separated from residual waste for recycling. Waste ‘similar in nature to household waste’ would include paper, packaging, glass and textiles for example. Three options are considered in pursuit of this aim whereby businesses would be required to either:
- Segregate both dry recyclable materials and glass from residual waste;
- Segregate both dry recyclable materials (except glass) and food waste from residual waste; or
- Segregate dry recyclable materials, glass and food waste from residual waste.
Subject to the outcome of the consultation there will be a further consultation in late 2019 or early 2020 on regulatory changes to implement these measures.
The consultations affect a wide range of stakeholders, including businesses, local authorities and individuals. At their heart is a desire to trigger behavioural change; reduce virgin material use, waste, emissions and environment impacts. Maximisation of resources encouraging redesign and reduction of unnecessary packaging permeates throughout the consultations. The role of plastic has gained particular legislative traction. Key incentives are financial: the Government expects to raise between £800 million and £1 billion a year from packaging waste changes alone.
With three of the four consultations affecting all or most of the UK, collaboration between the devolved governments will be key to ensure efficient and effective systems. With the Scottish Government having already consulted on a DRS for Scotland, the impact of either a single DRS or multiple DRS on business and the risk of fraud is uncertain and should be fully considered.
The DRS, producer responsibility and consistent materials consultations will close on 13 May 2019, with the consultation on a plastic packaging tax closing on 12 May 2019. Following this, changes will be set out as part of the Environment Bill which is expected to be introduced to Parliament prior to July 2019.
Co-authored by William Caruana.
CMS Scotland are running a seminar in Edinburgh on 27 March looking at the key practical issues and opportunities facing businesses arising from the rapidly progressed proposed EU Directive on single use plastics. Find out more.