Tackling single-use plastics: the advent of many legal measures which will affect you

Yesterday’s announcement that subject to certain exceptions plastic straws, plastic stemmed cotton buds and plastic beverage stirrers in England will be prohibited from supply as of April 2020 has gained much media attention in the UK. However, this is but a fraction of wider measures in the UK, the EU and globally to deal with environment impacts arising from and the management of single use plastics (“SuP”). More encompassing measures were progressed this week with a proposed EU Directive receiving approval from the EU Council (the “SuP Directive”). These laws should not be viewed in isolation and affect many parts of the supply chain and different sectors. Together with wider changes in extended producer responsibility, waste requirements and global limitations on the transportation of plastic waste understanding how they all link together and future changes will be crucial to avoiding adverse business impacts and identifying the opportunities for alternative solutions the measures create. All businesses in food and drink (particularly fast food), hospitality, consumer products including personal care and waste sectors together with the investment community should consider what action is necessary.

The prohibition on supply of plastic straws and plastic stemmed cotton buds will be subject to exceptions relating to accessibility and technical usage. Plastic straws will still be available on demand in bars and restaurants as the prohibition is on the active offering of plastic straws by such establishments. Many bars and restaurants either have already or will be considering their use of SuP items in advance of the introduction of the measure. Further information is available here.

Separately, the SuP Directive introduces an array of different measures designed to combat the impact of particular (not all single use plastic) products on the environment especially the aquatic environment and to promote the transition to a circular economy. The measures range from a full moratorium on the placing on the market of certain SuP products for which environmentally sustainable alternatives already exist, to mandatory collection and recycling targets in respect of other plastic products that are not immediately replaceable. Underpinning the Directive is the principle of product differentiation, with different rules applying to specific products. The SuP Directive will enter into force twenty days after its official publication following which Member States have staged periods depending on the measure to transpose it into national law. Definitions have been introduced for “plastic”, “single use plastic product”, “oxo-degradable plastic” and “fishing gear” which are crucial in considering the applicability of the provisions.

There are:

• Prohibitions: the supply for distribution, consumption or use on the market in the course of a commercial activity of single-use plastic cotton bud sticks, cutlery (forks, knives, spoons, chopsticks), plates, straws, beverage stirrers and balloon sticks, cups and beverage containers made of expandable polystyrene, food containers made of expandable polystyrene provided that the food contained in them is intended for immediate consumption and does not require further preparation such as cooking or heating. All products made of oxo-degradable plastic will be banned.
• Obligations to achieve a “measurable quantitative reduction” by 2026 compared to 2022 in the consumption of certain not immediately replaceable plastic products, such as fast food and beverage containers.
• Product design requirements: plastic caps and lids (other than those made of metal or glass) must remain attached to beverage containers during the intended period of use and plastic beverage containers must meet minimum recycled content.
• Marking requirements: certain personal care products, wet wipes and domestic wipes, tobacco products containing filters, as well as beverage cups, must have marking explaining the appropriate waste management options, the negative environmental aspects of littering and that the product contains plastic.
• Extended Producer Responsibility (EPR):
  • producers of: cups for beverages and plastic beverage containers up to three litres; lightweight plastic carrier bags; packets and wrappers and containers for food intended for on-the-spot (or ‘take-away’) consumption; beverage cups and containers (apart from metal/glass beverage containers with plastic caps) - By December 2024, (or January 2023 for EPR schemes established before 4 July 2018) these producers must start covering the full cost of collection, transport, treatment and clean-up of waste from these products, as well as the cost of taking measures to incentivise responsible consumer behaviour in respect of them. The costs contributions required from such producers may take the form of multiannual fixed amounts.
  • producers of wet wipes, balloons and tobacco products also cover the cost of data gathering and reporting on the marketing, collection and treatment of waste resulting from these products, as well as the cost of installing special infrastructure for the collection and treatment of waste from these products (including the setting up of appropriate waste receptacles).

Alongside these measures are other laws being adopted by various jurisdictions along all aspects of products’ lifecycle including the impact of SuP being considered in procurement decisions. The pace and breadth of change should be noted and trigger analysis of the longevity of existing models and practise.