Ahead of Global Recycling Day, our expert manufacturing solicitors consider what manufacturers and others involved in the supply chain need to know about their responsibilities for packaging placed on the UK market, including information on how to comply with the Extended Producer Responsibility (EPR) regime for packaging.
Since its establishment in 2018, Global Recycling Day has been celebrated each 18th March, with the aim of recognising, and celebrating, the importance recycling plays in preserving earth's primary resources and securing the future of our planet. The collective efforts of individuals have a role to play, as does legislation.
In a previous blog - Greenwashing Risks for Manufacturers | Myerson - we discussed the legislative regime that governs the claims businesses make in respect of their green credentials, and which aims to ensure that only those businesses which actually are environmentally friendly can gain the credit associated with claiming to be so.
Another tool used by legislators to require businesses to act in an environmentally sustainable manner is the Extended Producer Responsibility (EPR) regime for packaging.
The broader Producer Responsibility regime makes businesses that manufacture, import and sell relevant products responsible for their end of life environmental impact, and has specific application in the UK to electrical and electronic equipment, batteries and 'end of life' vehicles. It also applies to businesses that handle and supply packaging, which is the focus of this article.
The EPR Regime will extend (and replace) obligations in respect of packaging which were already in place under the Producer Responsibility Obligations (Packaging Waste) Regulations 2007, which themselves implemented an EU directive on the same topic. These required any organisation which:
To meet specified compliance requirements, including registering as a packaging producer, meeting their recycling obligation, obtaining evidence of compliance and submitting an annual certificate of compliance.
The new EPR Regime, brought into effect through the Packaging Waste (Data Reporting) (England) Regulations 2023 (and related legislation for other parts of the UK), introduces new obligations for those producers who were already subject to the old regime, and extends the range of businesses in scope of the regime by imposing obligations on a new class of 'small' organisations.
This depends on the nature of your business, and the types of activities you undertake. A business will be subject to the regime if it matches the following description, and if it also carries out one of the packaging related activities discussed below:
The packaging activities are:
The term 'packaging' itself is broadly defined, and covers any material that is used to cover or protect supplied goods, or which makes goods look appealing for sale (including material which displays a company’s logo or brand).
The reference to branding is important, since supplying packaged goods under a business's own brand (whether the brand owner has itself packaged the goods or has outsourced that activity to a third party) may, if the other criteria are fulfilled, make the brand owner subject to the EPR regime.
Any business which may be subject to the EPR regime should assess the specific compliance requirements which apply to it on a case specific basis. Requirements vary significantly between 'large' organisations and 'small' organisations.
Out of scope: Organisations which have an annual turnover lower than £1 million, or which were responsible for importing or supplying no more than 25 tonnes of packaging to the UK market in the previous calendar year, are outside the scope of the EPR regime.
'Large' organisations: An organisation will be classed as 'large' if:
'Small' organisations: Any organisation which is within the scope of the EPR regime, but does not cross the thresholds for a 'large' organisation, will be classed as a 'small' organisation.
For 'small' organisations, primary obligations under the EPR regime are to record and report on data about the packaging which the organisation supplies or imports in the UK. The first reporting deadline for such information is 1 April 2025.
For 'large' obligations, a more onerous set of obligations apply. As well as complying with requirements in respect of collecting and reporting on packaging data similar to those imposed on 'small' organisations, such organisations must:
Fees under the EPR regime were originally intended to come into effect for payment in 2024. However, the government deferred the introduction of these fees for a year, meaning that 'large' organisations will not have to pay any EPR packaging fees until 2025 (although they will still be liable for any fees due under the existing Packaging Waste regime). However, despite that deferral, all organisations subject to the EPR regime, whether 'small' or 'large' will be required to collect and report on their packaging data for 2023, and a 'large' organisation will be required to pay any related fees in 2025 based on its 2024 activity and data.
The EPR Regime represents a significant step in the green agenda, designed to continue the process of ensuring that it is the businesses responsible for packaging which bear the costs associated with its disposal, rather than the taxpayer.
Achieving these environmentally beneficial objectives will entail additional costs and compliance requirements for businesses, including businesses which, because of their size and volume of packaging activity, fell outside the scope of the preceding regime. However, since the EPR regime has been designed so that the costs will fall on those businesses in the supply chain which have the greatest say over what packaging is used on packaged goods, affected businesses should be incentivised to minimise the amount of packaging they use - a desirable aspiration ahead of this year's Global Recycling Day.
If you would like to discuss any of the matters considered in this article, our manufacturing lawyers would be happy to advise.
Contact Myerson today for clear, practical advice tailored to your situation.
Ahead of Global Recycling Day, we consider what manufacturers and others involved in the supply chain need to know about their responsibilities, including compliance with the EPR (Extended Producer Responsibility) regime for packaging.
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Richard is a Senior Associate in our Commercial Team and Head of the Life Sciences sector with over 13 years of experience acting as a Commercial solicitor. Richard has specialist expertise in the negotiation of commercial contracts relating to the supply and distribution of goods and services, the licensing of software, and intellectual property.
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