The co-legislators - the European Parliament (EP) and the Council agreed on the final form of the Directive prohibiting the use of single-use plastic products (SUP Directive). The European Commission (EC) proposed this draft legislation in May 2018. The draft Directive was approved by the EP in October 2018. Negotiations with the Member States ended early in the morning on 19 December last year.
The Committee of Permanent Representatives of the EU Member States to the Council (COREPER) and the EP Committee on the Environment, Public Health and Food Safety (ENVI) approved the final text of the Directive on 18 and 22 January, respectively. The Directive is expected to be adopted unchanged in the second quarter of 2019.
The EP vote on the adoption of the SUP as a final act will probably take place in the plenary session in March this year. The date of the vote on the SUP in the Council is not yet known, possibly in April. The SUP Directive will enter into force after publication in all official languages of the EU in its Official Journal, which is expected to take place in the second quarter of 2019. Member States will have two years to transpose the Directive into national law. An evaluation of its functioning is planned 6 years after this transposition, i.e. in 2027.
Legal basis and objective of the SUP
The Directive is based on the EU competencies in the field of environmental action. Its entry into force will therefore not prevent any Member State from maintaining or introducing more stringent protective measures. However, such measures must comply with the Treaties and notified in advance to the EC.
The objective of the Directive is to prevent the environmental impacts of certain SUP products, in particular on the aquatic environment and human health, and to reduce the impact of certain SUP products, as well as to promote the transition to the circular economy (CE) with innovative and sustainable business models, products and materials, thereby contributing to the smooth functioning of the EU internal market.
The Directive promotes a circular approach where sustainable, non-toxic, reusable products rather than SUP products are given priority. It’s aim is to prevent waste and to preserve the value of products and materials for as long as possible. The need for the EU to play a leading role in preventing and combating pollution of the marine environment and to strive for global standards in this area is emphasised.
Scope of the SUP Directive
The SUP Directive directly relates to “producers”. Producers are, in fact, all those established in a Member State who professionally produce, fill, sell or import and market SUP products from that Member State, as well as entities established in another Member State or in a third country which professionally sell SUP products directly to users. This definition is particularly important to determine who will bear the burden of the extension of Extended Producer Responsibility (EPR) schemes. The co-legislators have once again extended the definition of producer to points of sale to final consumers (stores) - but only when marketing takes place there, i.e. the first making available of a product on the market.
This definition is particularly important in order to determine who bears the extended producer responsibility under the Directive. Thevast majority of existing EPR schemes do not cover plastic raw material producers, such as Synthos (upstreamproducers). However, Synthos customers may of course suffer if they are producers of SUP products (or fishing gear containing plastic).
“Plastic” is defined as a material consisting of a polymer within the meaning of Article 3(5) of REACH Regulation 1907/2006 to which additives or other substances may be added and “which may serve as the principal structural component” of the final products, except for natural polymers which have not been chemically modified within the meaning of Article 3(40) of REACH. This definition aims at excluding polymer paints, inks and adhesives from its scope, but includes biodegradable plastics. The co-legislators deleted the exclusion of coatings from this definition, as proposed by the EC.
The Directive contains a very broad definition of a single-use plastic product (SUP) as being made wholly or partly from plastics and not conceived, designed or placed on the market to ensure, within its life span, multiple trips or marketing cycles by being returned to the producer by refill or reuse for the same purpose for which it was conceived.
Since a product made partly from plastic can be a SUP product, even the smallest proportion of plastic in the given definition, e.g. a coating or lining of a paper cup make it a product made of plastic within the meaning of the SUP Directive. The co-legislators have clarified that products that are returned to another producer for refill (e.g. in return packaging schemes where many producers cooperate) are reusable products outside the scope of the Directive.
The preamble to the Directives adds that SUP products are “normally intended to be used only once or for a short time before disposal”. The alternative complementing wording used here may lead to an extreme interpretation which will cover products with a very long use phase, such as e.g. insulation systems using foamed polystyrene boards, as they are usually intended for single use.
Primacy of the SUP Directive over other provisions
While it is recognised that proper waste management is essential to prevent further littering, the impact of existing EU legislation on marine pollution is insufficient. The SUP Directive provides that where its provisions conflict with the provisions of the Packaging and Packaging Waste Directive 94/62 or the Waste Framework Directive 2008/98, the rules laid down in the SUP Directivetake precedence, as more detailed. The SUP Directive is therefore lex specialis in relation to these other Directives. However, as is pointed out, this concerns marketing restrictions and, in particular, with regard to consumption-restricting measures, product requirements, labelling requirements and extended producer responsibility, this Directive complements the other two Directives.
Article 4 of the SUP Directive concerning the reduction of consumption provides that Member States may introduce trade restrictions, i.e. bans, by way of derogation from Article 18 of the Packaging and Packaging Waste Directive 94/62 in order to prevent littering with these products in order to ensure that these products are replaced by reusable (or non-plastic) alternatives.
Article 18 of the Packaging and Packaging Waste Directive establishes the freedom to place on the market packaging that meets the requirements of the Directive. The grounds for derogations from Article 18 provided for in that Directive are narrower than the relevant provisions of the SUP Directive. However, due to unclear provisions of the SUP Directive (which uses the unclear collective concept - “these products”) and the accompanying Annex - the issue of harmonisation of the application of the above directives will raise many doubts.
According to Article 11 of the SUP Directive, the measures that Member States will adopt to transpose the Directive will have to comply with EU food packaging legislation.
Different measures for different product categories
The Directive provides for different measures for several product categories. They partly overlap, i.e. certain categories of products are dedicated to multiple solutions.
Member States will have to take the necessary measures to achieve an “ambitious and significant” and “measurable quantitative” reduction in the consumption of certain SUP products by 2026 compared to 2022. To this end, the Directive provides for notification, planning, monitoring and reporting obligations for Member States - possibly setting binding quantitative targets for the EU. Consequently, the Directive does not set specific quantitative consumption reduction targets. The proposal does not specify what measures Member States should take to achieve this reduction in consumption. Those measures may, however, include the use of national targets or consumption reduction targets for the minimum percentage of reusable packaging placed on the market or the maintenance or introduction of economic instruments, such as additional charges at the point of sale.
SUP products whose consumption must be reduced are cups made of EPS for beverages, including their caps and lids and food containers.
The definition of SUP food containers and their differentiation from food packaging outside the scope of the SUP Directive was the subject of particular attention during the legislative process. The Annex now includes a uniform description of food containers as: receptacles, such as boxes, with or without cover, used to contain food that is intended for immediate consumption, on-the-spot or take-away, intended to be consumed from the receptacle and containing ready-to-eat food without further preparation, such as cooking or heating. This category includes food containers used for fast food or other ready-to-eat meals, with the exception of beverage containers, plates and packets and wrappers containing food.
In addition to the criteria listed in the Annex, Article 12 states that, in order to determine whether a food container is to be considered as a SUP product, “its tendency to litter, due to its volume or size, in particular single-use portions, play a decisive role.” Examples of food containers that can be considered as SUP products are given: fast food containers or containers for meals, sandwiches, packages and bowls with cold or hot food or containers for fresh or processed food that do not require further preparation, such as fruit, vegetables or desserts, but are not intended for dried food or food that is sold cold and requires further preparation, containers containing food not in single portions or food containers sold in single portions but in a collective set.
Two years after the entry into force of the Directive, i.e. probably in the second quarter of 2021, Member States will have to prohibit the placing on the market of a number of single-use plastic products, including food containers, beverage containers and cups made of EPS for beverages. Such products as, among others, cotton bud sticks, cutlery, plates, straws and stirrers will also be prohibited.
In addition, products made of oxodegradable plastic will be prohibited, regardless of whether they are considered to fall under the definition of SUP products or not. The Directive defines as oxodegradable plastic containing additives which, by oxidation, lead to micro fragmentation of the plastic or to chemical decomposition.
While the original EC proposal did not specifically address any specific polymer, the final draft Directive therefore specifically refers to certain applications with EPS, PET and oxidegradable plastics.
Product requirements, including mandatory minimum content of recyclate
5 years after the entry into force of the Directive, beverage containers of up to three litres with plastic caps and lids can only be placed on the market if the caps and lids remain attached to the container during the intended period of use for the product. Metal caps or lids with plastic seals used for this purpose will not be considered as made of plastic. Beverage containers are those that will be used to store liquids, e.g. beverage bottles and composite beverage containers, including their caps and lids, but not glass and metal beverage containers that have plastic caps and lids (with the exception of some containers for special medical purpose). The EC will request the European standardisation organisations to prepare harmonised standards in this area within three months of the entry into force of the Directive.
From 2025, beverage bottles with PET as the main ingredient will have to contain at least 25% of recycled plastics. This percentage is to be calculated as an average for all PET bottles marketed in the territory of a given Member State.
From 2030 onwards, all SUP beverage bottles must contain at least 30% of recycled plastic calculated as before.
Two years after the entry into force of the SUP Directive, among others, beverage cups will have to be marked visibly, legibly and indelibly on their packaging or on the product itself. Similar labels will have to be applied to, for example, sanitary towels, tampons and tampon applicators, wipes or tobacco products with filters and filters intended to be used with tobacco products.
The label must inform consumers about the appropriate waste management options or waste disposal measures to be avoided for this product, as well as the presence of plastics in the product and the resulting negative environmental impact that littering or other misuse of the product can have. The task of the EC is to establish harmonised specifications in the implementing document.
Extended producer responsibility (EPR)
The Directive provides for differentiated EPR schemes for packaging and packaging products of different SUP products to be implemented in principle by the end of 2024. However, the existing EPR schemes established before July 2018 need to be adapted to the SUP Directive by 5 January 2023. The Packaging and Packaging Waste Directive 94/62, as recently amended by Directive 2018/852, stipulates that Member States must establish EPR schemes for all packaging before the end of 2024.
Producers of food containers, beverage containers, beverage cups (including their caps) shall cover costs in accordance with the general principles of the EPR and additional costs, if not already included, including:
the costs of the awareness-raising measures referred to in Article 10 concerning these products;
the costs of collecting the waste of these products rejected in public collection systems, including the costs of setting up and operating the infrastructure, transport and treatment of waste;
the costs to clean up litter of those products and its subsequent transport and treatment
The costs to be covered shall not exceed the costs that are necessary to provide those services in a cost-effective way and shall be established in a transparent manner between the stakeholders. The costs to clean up litter shall be proportionate and limited to activities undertaken by public authorities or on their behalf. To minimize administrative costs, Member States may determine financial contributions to clean up litter by setting appropriate multi-annual fixed amounts. The Directive introduces a system of authorised representatives amongst the Member States for the purpose of producers fulfilling their EPR obligations.
Attempts made by the plastics industry to reduce waste disposal costs under the EPR have failed.
Member States shall take the necessary measures to collect separately for recycling, no later than by 2025, 77% of the waste from SUP beverage bottles with a capacity of up to three litres, including their caps and lids, but not glass and metal beverage bottles that have caps and lids made from plastic (excluding bottles for special medical purposes). No later than by 2029, 90% of the waste from such SUP beverage bottles must be collected separately for recycling. SUP beverage bottles placed on the market within a Member State may be deemed to be equal to the amount of waste generated of such products. In order to achieve this target, Member States may, among others, establish separate targets for relevant EPR schemes or establish deposit refund systems.
Education and awareness raising
Within two years after the entry into force of the Directive, Member States shall take measures to inform consumers and to incentivise responsible consumer behaviour, in order to achieve a reduction in the littering of products covered by this Directive.
With regard, among others, to the EPS applications defined above Member States shall take measures to inform consumers about:
a) the availability of alternatives for those SUP products, re-use systems, and waste management options for those products, as well as best practices in sound waste management carried out in accordance with Article 13 of Waste Framework Directive 2008/98;
b) the impact of littering and other inappropriate waste disposal of those products on the environment, and in particular on the marine environment;
c) the impact on the sewer network of inappropriate waste disposal of the waste from SUP products.
As in the case of setting up separate collection systems, MemberStates will have to organise these measures themselves. This is particularly important as the burden will probably be passed on to producers.
Implementation, enforcement and evaluation of the Directive
In general, Member States will have two years from the date of publication to transpose it into their national laws, making the provisions of the SUP Directive directly applicable to economic operators. The SUP Directive gives the EC multiple mandates to adopt implementing acts on:
• The methodology for calculation and verification of consumption reduction measures (within 18 months from the entry into force), of the separate collection targets (within 12 months from the entry into force), of recycled content in beverage bottles (January 2022);
• Harmonised specifications for marking requirements (within 12 months from the entry into force);
• The format for reporting data (within 12 months from the entry into force; except for information on recycled content in beverage bottles: January 2022).
The Directive also requires the EC to publish guidelines “including examples of what is to be considered a single-use plastic product” (within 12 months from the entry into force) and criteria on the cost to clean up litter (no explicit time limit). The guidelines on the definition of single-use plastic products should encompass all product categories listed in the Annex, including food containers.
Member States must lay down the rules on effective, proportionate and dissuasive penalties applicable to infringements of national provisions adopted pursuant to the SUP Directive. Member States must take all necessary measures to ensure the implementation of the Directive.
Within six years after the transposition deadline, i.e. likely by 2027, the EC shall carry out an evaluation of the Directive and submit a report, accompanied by a legislative proposal, if appropriate. The report shall include assessments of:
the need to review the Annex, including in particular regarding caps and lids made of plastics used for glass and metal beverage containers;
the change in materials used in the SUP products covered by the Directive, as well as of new consumption patterns and business models based on the use of alternatives for SUP products; this assessment shall include a life-cycle analysis to assess the environmental impact of such products;
the scientific and technical progress concerning the formulation of criteria or standards for biodegradability in the marine environment applicable to SUP products within the scope of the Directive (and their substitutes), which ensure full decomposition into CO2, biomass and water within a timescale short enough for the plastics not to be harmful for marine life and not lead to an accumulation of plastics in the environment.
The co-legislators have therefore set a high bar for biodegradable SUP products, which will probably be prohibited in the future.