The wait is finally over - new ambitious rules for packaging & packaging waste

Following many months of speculation, information leaks, and what has been described as a “watering down” of an initial draft it is finally here – the EU’s proposal for a revised Packaging and Packaging Waste Regulation.

Note the term ‘Regulation’ – the existing legislation is in the form of a Directive. What is the difference? A Directive formulates a goal that member states must achieve, but the exact implementation is left to each individual member state. As could be observed with the Single Use Plastics Directive, this can potentially lead to different degrees of implementation and achievement of goals, creating the potential for competitive distortions.

A Regulation, in contrast, is a binding legislative act, every element of which must be applied across the EU. The change thus emphasises the need for the establishment of uniform rules in the common market which will enable economies of scale for activities to be undertaken to fulfil the new requirements. In addition, the provisions of a Regulation apply directly to economic operators.

To describe the new Regulation in one word – it is very ambitious. But then that is what we need to be to make progress. I am pleasantly surprised by the overall balanced reception of the measures that will be challenging and sometimes costly to achieve and implement by the industry. Given that several of the more ambitious measures include opt-out clauses already, any watering down of the proposal should be avoided – change is almost always challenging but has never been as necessary as today for industry to continue to operate successfully in a radically changed market environment that requires adaptation and change to achieve the goals of the EU’s Green Deal.

As has been pointed out in last week’s edition of The Economist, investments are flowing into the US because of subsidies becoming available for green energy technologies and renewables schemes under President Biden’s Inflation Reduction Act. Europe needs to stay competitive against this background.

One core element of the new Regulation are recycled content targets for 2030 and 2040 respectively.  These apply to PET contact-sensitive packaging (30% and 50%), other contact-sensitive packaging (10% and 50%), single use plastic beverage bottles (30% and 65%) and other types of packaging (35% and 65%).

Targets will have to be met for each unit of plastic packaging, with recycled content from post-consumer plastic waste. While to be welcomed for its push to create much needed market demand for recyclates success will depend on the availability of sufficient volumes of recyclates to incorporate into these packaging types.

Especially where food contact materials are concerned this is far from certain given the EU’s strict food contact rules incorporated in EU Regulation 282/2008 on “recycled plastic materials and articles intended to come into contact with foods”. Chemical recycling is unlikely to be able to close the gap between demand and availability in the short and possibly medium term. This is considered by the provision that targets could be temporarily amended through a delegated act when there are supply issues or when there are excessive prices for specific recyclates.

However, Article 47 paragraph 9 of the draft Regulation (Rules on the calculation of the attainment of recycling targets) provides a potential indication of chemically recycled plastics to be counted towards the achievement of recycling targets, as long as operations do not convert waste to fuel or for incineration, backfilling, and landfilling.

The Single Use Directive will have to be amended to be in line with these new targets. In addition, the industry is awaiting the EU’s decision regarding the application of a mass balance approach to calculate recycled content in packaging, which would likely unlock investments in non-mechanical recycling technologies.

The obligation to introduce Deposit Return Systems (DRS) for single-use plastic bottles and single-use metal and aluminium beverage containers up to 3l is to be unequivocally welcomed, given the higher rates of PET bottle recovery in countries where a DRS is already operating and the high and growing demand for rPET. Member states will only be able to opt out of this obligation by achieving a 90% separate collection rate through other means in 2026 and 2027.

Similarly to be welcomed are common Design for Recycling criteria with the aim to make all packaging recyclable from 2030 and, lifting ‘recyclability’ from a theoretical concept to a real-world activity, to be ‘recycled at scale’ from 2035. Packaging with less than 70% recyclability will be banned from 2030.

The devil lies in the detail here as the definition of “at scale” is to be established at a later stage by delegated act, based on the volumes of packaging placed on the market, volumes separately collected, recycling rates for the specific type of packaging and installed recycling infrastructure.

If the new recycled content targets will not generate sufficient investments into collection, sorting, and recycling infrastructure this measure could fall short of its potential.

From entry into force of the new Regulation, which is expected to be around 2025, single-use plastic grouped packaging, single-use packaging for fresh fruit and vegetables, single use packaging for foods and beverages filled and consumed within HORECA premises, single-use packaging for condiments, preserves, sauces, coffee creamer, sugar and seasoning in the HORECA sector, and single-use hotel miniature packaging will be banned. Especially where packaging for fresh fruit and vegetables is concerned this is likely to generate a debate about the increase in food waste resulting from shorter shelf live that might result because of lack of packaging. A complex debate, as illustrated by an article in The Guardian earlier this year which claimed that the fact that fruit and vegetables come in packages of multiples leads to wood waste in households.

Other types of packaging, including tea/coffee bags, coffee or tea system single-serve units disposed together with the used coffee products, sticky labels attached to fruit and vegetables and very lightweight plastic carrier bags are required to be compostable in industrially controlled conditions in bio-waste treatment facilities two years following entry into force of the regulation.

Further provisions are aimed at packaging minimisation, with packaging to be designed so that its weight and volume is reduced to the minimum necessary for ensuring its functionality and a 40% maximum empty space ratio for grouped packaging, transport packaging or-e-commerce packaging, all from entry in force of the Regulation.

Detailed labelling requirements, with labels and QR codes providing information about material composition and reusability of packaging, aim to make it easier for consumers to dispose of packaging in the correct way, enabling higher waste collection rates and less contamination of collected post-consumer packaging waste streams.

Waste prevention targets to be met by all member states require a reduction of packaging waste per capita by 5% by 2030, by 10% by 2025, and by 15% by 2040, compared to 2018 levels.

Most controversial are the reuse targets formulated in the Regulation for a variety of packaging types and these are indeed the targets that have reportedly been watered down following the emergence of leaked information about the draft Regulation and strong criticism from industry lobbyists.

Again, a complex debate as detailed life cycle assessments (LCA) would ideally be required to establish whether a reuse system is more beneficial, in environmental terms, than optimised existing solutions and improved collection, sorting and recycling.

Please do get in touch with any questions regarding the impact of the new Regulation at [email protected]