As we reported in an earlier article, last October the European Parliament voted overwhelmingly in support of the European Commission’s proposal for a Directive on the reduction of the impact of certain plastic products on the environment. In January this year the Council made amendments to the proposal which were accepted on 27 March 2019 by the European Parliament. The Directive will come into force after publication in the Official Journal (although the key obligations will start to ‘bite’ between 2 and 5 years after its entry into force).
We provide an overview of the obligations that the Directive imposes on businesses and Member States and analyse the most important amendments introduced into the text of the Directive since first reading in the autumn of 2018.
Overview of the measures imposed by the Directive
The Directive introduces an array of different measures designed to combat the impact of particular (not all plastic) products on the environment especially the aquatic environment and to promote the transition to a circular economy. The measures range from a full moratorium on the placing on the market of certain single-use plastic products for which environmentally sustainable alternatives already exist, to mandatory collection and recycling targets in respect of other plastic products that are not immediately replaceable. Underpinning the Directive is the principle of product differentiation, with different rules applying to each of the seven separate lists of specific plastic products that are contained in the Annex to the Directive.
Definitions have been introduced within the Directive for “plastic”, “single use plastic product”, “oxo-degradable plastic” and “fishing gear” which are crucial in considering the applicability of the provisions.
Complete ban on the marketing of certain products in the EU
From 2021, Member States are required to prohibit the supply for distribution, consumption or use on the market in the course of a commercial activity of single-use plastic cotton bud sticks, cutlery (forks, knives, spoons, chopsticks), plates, straws, beverage stirrers and balloon sticks. As under the original text of the Directive, exceptions are made for straws and cotton bud sticks intended for ‘medicinal use’, but this exception is now limited to products that fall within the scope of certain EU Directives on medicinal devices, in order to minimise the potential for abuse of the exception.
Cups and beverage containers made of expandable polystyrene will be prohibited, as well as food containers made of expandable polystyrene, provided that the food contained in them is intended for immediate consumption and does not require further preparation such as cooking or heating. All products made of oxo-degradable plastic will be banned.
“Very lightweight carrier bags”, which were previously part of the list of products to be prohibited, have now been removed from that list as part of the latest amendments. Instead, their regulation will be achieved through the extended producer responsibility regime (EPR), which is discussed below.
Consumption reduction targets
The obligation on Member States to achieve a significant reduction in the consumption of certain not immediately replaceable plastic products, such as fast food and beverage containers (other than those made of expanded polystyrene which will be banned), remains an important feature of the Directive. Member States are required to achieve this “measurable quantitative reduction” by 2026 compared to 2022.
Notably, the mandatory targets to reduce waste from tobacco product filters containing plastic by 50% in 2025 and by 80% in 2030 have now been removed from the Directive and replaced with a stricter form of enhanced producer responsibility than that envisaged for tobacco producers in earlier drafts of the Directive.
Product design requirements
The final text of the Directive retains without substantial amendments the requirement for beverage containers that have plastic caps and lids (other than those made of metal or glass) to only be placed on the market if the caps or lids remain attached to the container during its intended period of use – from 2024.
However, as part of the latest amendments the minimum recycled content target for plastic bottles has been changed from 35% by 2025 (as per the October version) to 25% by 2025 in the final text. A new target for plastic bottles to contain at least 30% recycled content by 2030 was also introduced.
The final text of the Directive still requires sanitary towels, tampons, wet wipes and domestic wipes to have marking explaining the appropriate waste management options, the negative environmental aspects of littering and that the product contains plastic. Tobacco products containing filters, as well as beverage cups, were added to the list in October and remain on it. These marking obligations will be effective in 2021.
As part of the most recent amendments, balloons and packets and wrappers containing food that is intended for immediate consumption without further preparation, which were subject to marking requirements in earlier drafts of the Directive, have now been removed from the list.
Extended Producer Responsibility (EPR)
The Directive imposes extended producer responsibility on producers of: cups for beverages and plastic beverage containers up to three litres; lightweight plastic carrier bags; packets and wrappers and containers for food intended for on-the-spot (or ‘take-away’) consumption; as well as beverage cups and containers (apart from metal/glass beverage containers with plastic caps). By December 2024, (or January 2023 for EPR schemes established before 4 July 2018) these producers must start covering the full cost of collection, transport, treatment and clean-up of waste from these products, as well as the cost of taking measures to incentivise responsible consumer behaviour in respect of them. The costs contributions required from such producers may take the form of multiannual fixed amounts.
As a result of the latest amendments, the Directive now also requires, in addition to all of the producer responsibility obligations listed above, that producers of wet wipes, balloons and tobacco products also cover the cost of data gathering and reporting on the marketing, collection and treatment of waste resulting from these products, as well as the cost of installing special infrastructure for the collection and treatment of waste from these products (including the setting up of appropriate waste receptacles). The EPR obligations of producers of tobacco products start nearly a year earlier than those of all other producers, in January 2023. The extended responsibility of producers of fishing gears remains, but the final text of the Directive also requires member states with sea access to set up a national annual minimum rate of collection and recycling of waste fishing gear containing plastic, with a view to establishing binding quantitative collection targets in the future.
Separate collection targets for plastic bottles
Like previous drafts, the final text of Directive requires that Member States achieve a 90% collection and recycling rate for plastic beverage bottles. However, as part of latest amendments, Member States now have until 2029 to do so (rather than 2025). Moreover, as part of the amendments, this obligation has been limited to beverage bottles of up to three litres and excludes those that are made of glass or metal but which have plastic lids, as well as beverage bottles for medicinal purposes. Another amendment is the addition of a transitional target of 77% collection and recycling of plastic bottles by 2025.
The Directive aims to tackle the most common elements of aquatic plastic pollution and introduces robust measures to that effect. Some of the measures such as outright prohibitions on the supply of certain types of products within the EU are radical and show the collective impetus behind this action and the desire for change. The Directive’s staged requirements will present both numerous challenges and opportunities for businesses, therefore it is vital for stakeholders to review the Directive carefully and consider its applicability fully. Guidelines and standards will need to be prepared to facilitate the implementation of provisions which should be closely followed. The Directive is only part of a series of measures in relation to the circular economy which are shaping significant behavioural change which should be evaluated by all those in the supply and investment chain.