Proposed Plastic Packaging Tax: changes, unanswered questions and Consultation Deadline Extension

The UK Government announced as part of the Budget 2020 that a new tax will apply from April 2022 to both filled and unfilled plastic packaging produced in, or imported into, the UK which contains less than 30% recycled plastic. HM Treasury is currently consulting until 20 August 2020 on areas of the tax design which have been further refined.[1] The present consultation, suggesting a rate of £200 per tonne, should be of interest to all those in the value chain such as product manufacturers and producers, retailers, materials manufacturers and the waste management industry particularly as there have been changes from earlier proposals as to the scope of the application of the tax.

Key changes within the present consultation

The background to the proposed tax is set out in our earlier article.

In the present consultation document a number of new aspects have been confirmed.

• The scope of the tax has been extended to include imported filled plastic packaging that does not contain at least 30% recycled plastic content, rather than just imports of unfilled plastic packaging. For the purposes of the tax, ‘plastic packaging’ means packaging that is predominantly plastic by weight.
• The definition of ‘plastic’ has been revised to mean a material consisting of a polymer within the meaning of Article 3(5) of Regulation (EC) No 1907/2006, to which additives or other substances may have been added, with the exception of cellulose-based polymers that have not been chemically modified.[2] The revised definition removes part of the original definition which stated “…and which can function as a main structural component of final products…”, to take account of types of mixed material packaging where plastic is not the main structural component but is still the predominant material by weight. In such cases, the packaging will be considered plastic for the purposes of the tax. The revised definition also narrows the ‘natural polymer’ exceptions to those which are ‘cellulose-based’ to avoid instances of novel plastics or blends being developed to avoid the tax.
• The definition of ‘packaging’ is subject to consultation and views are being sought on including packaging-type products that do not fulfil a packaging function until they are used by the end consumer unless they are for longer term storage (e.g. cling film). Packaging used to transport imported goods will not be in the scope of the tax, except where the transport packaging is itself the good which is being imported.
• Plastic packaging which is manufactured or imported to be exported directly to an overseas customer will not be subject to the tax.
• The proposed tax rate is £200 per tonne of plastic packaging which does not include 30% recycled content.
• Small operators manufacturing and/or importing less than 10 tonnes of plastic packaging in a 12-month period will be exempt from the requirement to pay the tax.

Unanswered questions

Draft legislation will be published for consultation later in 2020 including:-

• the scope of the tax by definition of the type of taxable product and recycled content;
• who will be liable to pay the tax including suggestions of joint and several liability subject to due diligence defences; and
• how the tax will be collected, recovered and enforced.

Comment

The tax is intended to encourage the use of recycled plastics within packaging, create greater demand for recycled plastics, and stimulate increased levels of recycling and collection of plastic waste. This is one of a number of proposed legal measures focusing on plastic reduction and increasing recycling levels of plastic materials. Many within the value chain are already progressing initiatives to increase recycled content. For those who are not, the tax rate of £200 per tonne should stimulate action. Some of the practicalities of the tax such as vigilance of imports will require careful thought and everyone from packaging suppliers to producers and retailers will need to consider how they can best incorporate mirroring requirements and evidence trails within their value chain in order to reduce the risk of attracting the tax due to input failures or due to joint and several liability potential. For others the measure will generate opportunities. In the background there are other ongoing producer responsibility packaging reform proposals pending which should be factored into decisions regarding packaging and materials. The 3 month extension to the consultation deadline to 20 August due to COVID-19 impacts will be welcomed by those who have not yet had the opportunity to consider the detail and to provide comments.

[1]https://www.gov.uk/government/consultations/plastic-packaging-tax-policy-design

[2]The original definition was as follows: ‘plastic’ means a material consisting of a polymer as defined in Article 3(5) of Regulation (EC) No 1907/2006, to which additives or other substances may have been added, and which can function as a main structural component of final products, with the exception of natural polymers that have not been chemically modified.