PPWR unpacked Part 5 - More Packaging Bans ahead

Is the EU Packaging Regulation PPWR repeating the same pattern as the EU Single-Use Plastics? As a reminder: four years ago, in order to send a signal against the littering of the world with plastic waste, the Commission proposed far-reaching bans on single-use plastic products, which were waved through by politicians under the impression of Brexit and the upcoming elections to the EU Parliament. As then, Belgian MEP Frederique Ries is again responsible for the project and again time is pressing to complete the procedure before the next European elections. And again, the Commission is proposing numerous bans on packaging, which we take a closer look at in today's episode.

Packaging bans are popular in many political circles. They suggest simple solutions to complex problems. Yet bans are actually the ultima ratio of politics and must be precisely formulated and well justified in order to be legally secure. The Commission's proposal lacks both: the proposals for bans suggest clarity where there is none, creates new bureaucracy and great uncertainty among companies. Their justification in the impact assessment is very weak: The Commission merely states that such packaging is "unnecessary". As examples of such "unnecessary" packaging, the Commission cites "plastic trays in a cardboard packaging" and "a cardboard sleeve on a robust tube, e.g. toothpaste", although the proposal itself does not concern these types of packaging at all. Otherwise, it merely points out that "some of the more proactive brands and retailers in the EU have already removed [this packaging]". Further justification for the bans is missing. Under these circumstances, populist bans can easily turn against their authors, as we shall see.

Will the Easter Bunny still be allowed to wear a little bell in the future? According to the PPWR's Performance Criteria, this is highly questionable because - unlike in the past - consumer acceptance is no longer to be a recognised criterion.

Packaging bans appear in many places in the Commission proposal: We have already talked about the bans on non-recyclable packaging (Article 6, link ), the ban on plastic packaging without recycled content (Article 7, link ) and the ban on certain single-use industrial packaging in B2B exchange (Article 26(12+13), link ). Further bans can be found in the requirements for compostable packaging (Article 8), packaging minimisation (Article 9), the empty space limitation (Article 21) and - most notably - in the packaging bans of Article 22 in connection with Annex V of the proposal. Today we want to focus on the last three proposals. We will discuss the proposals for compostable plastics at a later stage.

Packaging minimization, Article 9

The idea that packaging must meet certain requirements is already anchored in the EU Packaging Directive of 1994: According to this, packaging must meet so-called essentail requirements, which stipulate, among other things, that

"Packaging shall be so manufactured that the packaging volume and weight be limited to the minimum adequate amount to maintain the necessary level of safety, hygiene and acceptance for the packed product and for the consumer." (PPWD, Annex II, No. 1)

The Commission draws on these ideas in its proposal for regulations on packaging minimisation, but with the difference that "acceptance for the packed product and for the consumer" is missing from the list of performance criteria in Annex IV Part 1. This means that packaging or packaging components that do not have any of the core functions described in Annex IV (e.g. product protection, information, hygiene and safety requirements) are no longer permissible 12 months after the regulation comes into force. This is likely to have far-reaching consequences for the marketing of products - far beyond Easter bunnies.

Furthermore, the list of packaging functions in Annex IV Part 1 does not include the "presentation of products", which is mentioned in the definition of packaging (Article 3(1) PPWR). This is likely to raise difficult questions, especially for retail, about the handling of goods and protection against theft.

All readers of this blog will already suspect that such requirements will lead to new bureaucratic burdens for companies. And indeed, it is not enough that the packaging complies with the Performance Criteria, the companies have to prove compliance with the requirements in detail through so-called "technical information" according to Annex VII.

Empty space limit, Art. 21

A particularly good example of how strongly politicised the proposal is is the suggestion to limit the so-called "empty space ratio" for certain types of packaging to a maximum of 40%. This includes grouped, transport and e-commerce packaging, but not sales packaging. The?proposal is intended to prevent so-called "deceptive packaging". This sounds good, but is actually superfluous. Because such packaging already constitutes a misleading commercial practice, which is already uniformly prohibited throughout the EU. Moreover, the numerous negative awards for the most brazen cheating packaging and the public reporting on it show that - at least for this requirement - there is no enforcement deficit here.

Packaging Bans, Art. 22 and Annex V

Much has already been written about the numerous packaging bans in Annex V of the proposal.

Many comments criticise the ban on single-use packaging "for less than 1.5 kg fresh fruit and vegetables" (see Annex V No 1; critique e.g. here: link ), which is modelled on the French ban whose entry into force the Commission has just blocked (see here ). Reasons for the critique are a decrease in product shelf life, the compromising of hygiene, food quality, and traceability of the products - resulting in an increase of food waste and their environmental impact. This ban also smells strongly of populism: on the one hand, a ban sounds harsh, but on the other hand, far-reaching exceptions are to apply provided that "there is a demonstrated need to avoid water loss or turgidity loss, microbiological hazards or physical shocks". It is difficult to imagine fruit and vegetable packaging that does not meet these requirements.

The Commission's proposal to ban certain single-use plastic grouped packaging at retail, but not those made of other materials (see Annex V No 1), without any justification being given. This regulation is discriminatory against plastics and only promotes single-use packaging made of other materials.

A second focus of criticism is directed against the proposals to ban single-use packaging in the HORECA sector (hotels, restaurants, cafés etc.) in Annex V No. 3-5 (for criticism see e.g. here ). According to this, single-use packaging for food and beverages (e.g. trays, plates, cups, boxes etc.) or individual portions or servings (e.g. sauces, coffee creamer etc.) may no longer be used when consumed within the premise. In addition, single-use miniature packaging in hotels for cosmetics, hygiene and toiletry products will be banned.

The bans are to take effect - with one exception - already 12 months after the regulation comes into force. Only the packaging for food and beverages for on-site consumption will be banned from 2030.

Given the popularity of packaging bans and the supposed simplicity of the measures, it can be assumed that a large number of the expected amendment proposals in the European Parliament will revolve around further bans and the proposed exemptions. It is also quite possible that the infamous "negative list of packaging characteristics" will be brought back into play. The list, which was included in an earlier working draft of the PPWR, defined properties of packaging that would make the material ineligible to be considered recyclable and would therefore lead to a ban.

What also worries many companies is the Commission's proposal to decide on further packaging bans in future itself by delegated act - and thus bypassing Parliament and Council (see Article 22(4)).?This is not likely to please the Member States either - both those that have already introduced their own national packaging bans and those that attach importance to uniform packaging bans in the internal market. Indeed, for reasons of the rule of law, product bans as ultima ratio of regulation should always be subject to the ordinary legislative process and not be introduced by administrative decisions.

Next time we will look at the proposals by Parliament for changes to the PPWR. Here you can check the previous parts of this blog:

Part 1 : Process and People?

Part 2 : All packaging shall be recyclable

Part 3 : Minimum quotas for recycled plastics in packaging

Special : One Law to Rule them all.

Part 4 : Make all Packaging Re-usable again