Ban on single-use plastic items in England effective from 1 October 2020

The Department for Environment, Food & Rural Affairs has published guidance (the “Guidance”) on the long-awaited ban on single-use plastic straws, stirrers and cotton buds, which, subject to exemptions, will come in to force in England on 1 October 2020 pursuant to The Environmental Protection (Plastic Straws, Cotton Buds and Stirrers) (England) Regulations 2020.

Subject to a transition period, from that date, there is a prohibition on the supply or sale of single-use plastic straws and cotton buds to end-users in England, and single-use plastic drink stirrers to any customers (i.e. end-users and businesses) in England.

What is ‘single-use plastic’?

A single-use plastic straw or drink stirrer is made wholly or partly from plastic and is not designed or intended to be reused. A single-use plastic cotton bud is a rod made wholly or partly of plastic with cotton wrapped around one or both ends and is not designed or intended to be reused. The Guidance reveals that paper straws containing adhesives that contain plastics within the inner linings of the straws will not fall within the scope of the ban. The definition of plastic is defined by reference to the definition of polymer in the Regulation 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), in line with the definition of plastic in Directive 2019/904 (the “Single Use Plastic Directive”).

The transition period

If a business has purchased any single use plastic straw, drink stirrer or cotton bud subject to the ban before 1 October 2020, it can continue to supply or sell those supplies until 1 April 2021. After 3 July 2021, businesses must not supply drinks products with single-use plastic straws attached to packaging.

Enforcement

Local authorities as the enforcement body have the power to visit premises, make test purchases, question staff and inspect records. In the event that a business continues to sell or supply the items contrary to the restrictions, they can be subject to civil sanctions such as a Variable Monetary Penalty (VMP), Compliance Notice, a Stop Notice or could offer an Enforcement Undertaking. Any VMP issued is subject to a maximum 10% of annual turnover in England and the regulator may require the provision of information in order to establish the amount of any financial benefit arising as a result of the offence. There is a separate power to prosecute and upon conviction an unlimited fine is payable. Each local authority must publish details of the fine levels and when it will impose them on its website. There is a due diligence defence to any supplier where all reasonable steps and all due diligence have been exercised to avoid committing the offence.

Exemptions

There are a number of exemptions to the restrictions.

• single-use plastic straws
  • Registered pharmacies: must not display straws to customers; or advertise single-use plastic straws to customers in store (though they may advertise them online).
  • Catering establishments[1] with food and drink for immediate consumption: must keep straws where customers cannot see them or help themselves to them; only give straws to customers that request them; and not offer them to customers either verbally or in writing.
  • Medical devices or used for medical purposes;
  • Packaging; and
  • Care homes, prisons, schools and early years providers.
• single-use plastic cotton buds
  • for use as medical devices or for medical purposes including, preventative medicine, medical diagnosis, medical research and providing medical care and treatment; forensic purposes and scientific purposes

This is but one of a number of growing measures targeting single use plastic. Many readers will have been aware of the proposals for some time as the regulations were meant to have come into force earlier this year but were delayed due to COVID-19. Scotland has implemented restrictions in relation to the sale of single use plastic stemmed cotton buds since October 2019 and given its ambition to meet or exceed the restrictions within the Single Use Plastic Directive a host of other measures are due to be implemented or expected in Scotland and similar actions in Wales and England including deposit return schemes and the review and extension of producer responsibility and a proposed plastics packaging tax.

Article co-authored by Ben Collins.

[1] A ‘catering establishment’ is defined as a restaurant, canteen, club, public house or similar establishment including a vehicle or a fixed or mobile stall that supplies food or drink ready for consumptions without further preparation.