Vape Producers Risk Counting the Cost of Failure to Comply with Recycling Obligations

New research by Material Focus, a not-for-profit organization that encourages the recycling of small electrical products, has identified an apparent failure by 90% of smaller e-cigarette manufacturers to comply with environmental obligations imposed by law.

E-cigarettes, often described as ‘vapes’, are classified as e-waste – waste electrical and electronic equipment – or “WEEE”. Producers of electrical and electronic equipment, known as “EEE”, must comply with legal obligations in respect of EEE products that they sell, and that ultimately become WEEE.

After reviewing records maintained at Companies House by more than 150 UK-based vape and vape juice producers, Material Focus concluded that just 16 of the UK’s smaller producers appear to be fully compliant with applicable regulations relating to the treatment of WEEE, which must be collected, processed, and disposed of appropriately.

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Producers are obliged to comply with applicable environmental regulations, which require them to take responsibility for and contribute to the cost of recycling e-cigarette products and packaging that they produce. Material Focus’s analysis suggests that compliance would cost producers up to ￡69 million each year, based on financing the recycling costs associated with the 138 million disposable vape pens sold in the UK each year alone.

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Why does compliance matter?

A typical single-use e-cigarette or ‘vape’ includes a recyclable lithium battery and, in addition to plastic and rubber, contains valuable copper. Despite the recyclable nature of numerous components, producers are failing to take the necessary steps to facilitate the proper processing of recyclable elements of vaping products.

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As a result, the recycling burden is being passed on to consumers who are ill-equipped to ensure that the recyclable components of disposable vape pens are properly processed. Many consumers are unaware that elements are recyclable in the first place, let alone that they can dispose of them safely at a household recycling centre.

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As a result, a significant proportion of disposable vape pens are either disposed of as domestic waste or litter, which is both wasteful and potentially hazardous. Although these products contain valuable recyclable materials that it is desirable to recover, they also contain dangerous substances and represent a fire risk.

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What Registration obligations do Producers have?

E-cigarettes such as vaping pens are covered by the Waste Electric and Electronic Equipment (WEEE)?Regulations, known as the ‘WEEE Regulations’. The devices themselves are classified as EEE and fall under ‘Category 7: Toys, Leisure and Sports Equipment’, whereas the Environment Agency’s guidance highlights e-cigarette refills without electrical functions or parts as an example of non-EEE products, classifying them as ‘out of scope’.

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Manufacturers that produce EEE are required to register as Producers on an annual basis unless exempt. The process to be followed depends on the quantity of EEE that the manufacturer placed on the UK market during the prior calendar year, known as the ‘compliance year’. Producers must accurately calculate the quantity of EEE that they produce during each compliance year.

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(a)??Small Producers

Small producers are classed as those who placed less than five tonnes of EEE on the UK market in the prior compliance year. They face less stringent registration requirements and the regulator with responsibility for each small producer is determined by the geographical location of its registered office or principal place of business in the UK.

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To comply, small producers must register on the National Packaging Waste Database by January 31 each year, or within 28 days from the first time they place EEE on the UK market. Obligations are not limited to manufacturers and apply to companies that rebrand EEE manufactured by another company.

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Although small producers need not join a Producer Compliance Scheme, or “PCS”, the Environment Agency has made clear that such companies may still face financial obligations in respect of activities associated with the collection, treatment, recovery, and disposal of WEEE in certain circumstances, including if users of the relevant WEEE products are not limited to private households.

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(b)??Larger Producers?

Larger producers placing five tonnes or more of EEE on the UK market face more stringent requirements. Each such producer must join a Producer Compliance Scheme, or “PCS” by 15 November of each compliance year, or within 28 days of first placing EEE on the UK market if this first happens after 15 November.

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Producers may choose a PCS from an approved list, joining multiple schemes if necessary, and will be required to pay their chosen PCS. In return, the PCS will deal with WEEE on behalf of the producer and will ensure that producers’ obligations in respect of WEEE disposal are carried out in a way that is environmentally sound. ?

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(c)??Distributors

Producers that sell EEE directly to UK households have additional obligations as distributors, which include ensuring that consumers have an appropriate way of disposing of their old WEEE products when they purchase a new WEEE product.

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Depending on how EEE products are sold, it may be appropriate for producers to provide a free product take back service in store, or an alternative service elsewhere. This would, for example, allow purchasers of disposable e-cigarettes to return their old products to store for recycling in conjunction with purchasing new products. The alternative for producers that only sell online or sell less than ￡100,000 of EEE annually is to join the Distributor Takeback Scheme.

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Additional Obligations

Manufacturers are also responsible for labelling their EEE products with a date and a symbol of a crossed-out wheelie bin to make clear to consumers that EEE products must not be disposed of as domestic waste and should instead be taken to an appropriate recycling facility or returned to the retailer from which the product was purchased. Some retailers allow consumers to return used disposable e-cigarettes to enable them to be disposed of in an environmentally sound way.

Further obligations include record keeping, providing a producer registration number to any distributors to which products are supplied, and providing specific information in respect of the treatment of EEE products in an environmentally sound manner with a prescribed period.

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What are the consequences of failing to comply with applicable regulations?

Any producer who fails to either register as a small producer or join a PCS is committing an offence and runs the risk that enforcement action will be taken against it. Failing to take the necessary steps to avoid the costs associated with compliance with recycling obligations is a false economy.

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Producers can avoid the risk of compliance action by knowing their legal obligations and ensuring that they properly comply with the regulatory regime in place to protect the environment and consumers.

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If you are an EEE producer and are concerned that you may be in breach of applicable legislation relating to WEEE, or are facing potential enforcement action, contact Amanda Lee FCIArb to discuss your obligations today at [email protected]