Just before the start of the year, the European Commission introduced a Proposal for a Regulation on Packaging and Packaging Waste (PPWR) which will repeal the existing Packaging and Packaging Waste Directive (PPWD) and harmonise the packaging waste regime across the EU. The draft regulation will apply to all packaging of any material that is placed on the Union market and will thereby also apply to companies outside of the EU supplying packaging to EU customers. The overriding goal of the EU strategy is to make all packaging fully recyclable by 2030, thereby protecting the environment, reducing the need for primary raw materials and reducing dependence on raw material imports. The PPWR will oblige producers and Member States to make recycling and reuse the norm.

Background

In accordance with the European Green Deal and the new Circular Economy Action Plan, the EU aims to reduce the negative environmental impacts of packaging and packaging waste, while, at the same time, also aiming to improve the functioning of the internal market. The PPWR Draft Regulation will also amend sections of the Single Use Plastics Directive and the Market Surveillance Regulation. In doing so, the PPWR joins a number of other (international) legal efforts to reduce plastics, such as efforts in the UK or of the United Nations.

After the current Directive on Packaging and Packaging Waste, introduced in 1994, did not widely succeed in reducing the negative environmental impacts of packaging, the EU is bringing forward a new Regulation. The PPWR Draft Regulation expands the scope of the PPWD by implementing new provisions to tackle the excessive use of packaging, low recycling rates across the EU as well as the low share of recycled material in new packaging. The PPWR sets forth new requirements for the extended producer responsibility, collection, treatment and recycling of packaging waste. As this Regulation applies to all packaging¹ , regardless of the material used, and to all packaging waste, whether such waste is used in or originates from industry, other manufacturing, retail or distribution, offices, services or households, it will require many economic operators to redesign their packaging approaches. The proposal repeals the PPWD and turns the central piece of packaging legislation into a EU wide harmonized regulation, which means that it will be directly applicable in all EU Member States without transposition into local legislation.

The proposed measures

The PPWR introduces an array of new rules with regard to packaging that is placed on the EU market. The new rules address, in particular:

• Recyclability

• Uptake of recycled content

• Compostability of certain packaging

• Reusability

• Minimal size of packaging

• Harmonized labelling and marking requirements 

• Set up of deposit return schemes

• Ban of certain single-use packaging

Recyclability of all Packaging on the Market 

Under the PPWR, all packaging placed on the EU market will have to be recyclable (Article 4 and Article 6 PPWR). To be considered recyclable, packaging must in particular meet the following requirements:

• be designed for recycling (starting from 1 January 2030)

• be separately collected (from 12 months after entry into force)

• have capacity to be recyclable at scale (starting from 1 January 2035)

• have capacity to be recycled in a way that the secondary raw materials thus obtained are of sufficient quality to substitute the primary raw materials (from 12 months after entry into force)

The proposal is to be supplemented by secondary legislation. For example, the designed-for-recycling criteria will be established by the Commission in a delegated act.
Similarly, the Commission will develop a system for recycling performance. Packaging will be graded according to its recyclability with grades from A to E. Packaging that is graded E will be considered non-recyclable (and thus banned from the market). 

Further, financial contributions to be paid by producers to comply with their extended producer responsibility obligations shall be modulated based on the recyclability performance grades under the design for recycling criteria, which will be updated to include recyclability at scale thresholds. The PPWR also sets specific and lighter rules for innovative packaging²  (Article 6 (9) PPWR). Specific packaging, especially in the pharmaceutical and medical products sector, shall be exempted from the recyclability requirements until 31 December 2034 to take account of the human and animal health and safety considerations. After that, the rules mentioned above will also apply to these packaging.

Certain Share of Recycled Content in Plastic Parts of Packaging

Article 7 PPWR requires that plastic packaging shall contain certain minimum amount of recycled content recovered from post-consumer plastic waste per unit of plastic packaging. In detail:

• From 1 January 2030:

  • 10% for contact-sensitive packaging made from plastic materials other than PET, except single-use plastic (SUP) beverage bottles

  • 30% for contact-sensitive plastic packaging made from PET as the major component

  • 30% for SUP beverage bottles

  • 35% for other plastic packaging

• From 1 January 2040:

  • 50% for contact-sensitive plastic packaging, except for SUP beverage bottles

  • 65% for SUP beverage bottles

  • 65% for other plastic packaging

Specific packaging, especially in the pharmaceutical and medical products sector, has been exempted in Article 7 (3) PPWR. 

The Commission is to adopt an implementing act to establish the methodology for the calculation and verification of the percentage of recycled content recovered from post-consumer plastic waste per unit of plastic packaging and the format for the required technical documentation on 31 December 2026 at the latest (Article 7 (7) PPWR). 

Composability of Certain Packaging

Article 8 PPWR defines conditions for packaging to be considered compostable and stipulates that tea bags, filter coffee pods and pads, sticky labels attached to fruit and vegetables and very lightweight plastic carrier bags (wall thickness below 15 microns) shall be compostable by 24 months after the entry into force of the Regulation. Other packaging, with the exception of lightweight plastic carrier bags (wall thickness below 50 microns), for which a flexibility was granted to the Member States, shall qualify for material recycling. The provision further empowers the Commission to adopt delegated acts to amend the list of packaging that need to be compostable.

Reusability Targets for Packaging

Article 10 (1) PPWR lays down a list of the requirements for reusable packaging. One of the requirements is e.g. that all the packaging placed on the EU market will have to be designed and utilised in such a way as to be reused maximum number of times (cf. Article 10 (1)(b) PPWR). Specific reusability targets set out within the PPWR will pertain to the hospitality and e-commerce sectors and will also impact transport packaging (Article 26 PPWR). For instance, 

• with regard to transport packaging, a 100% reusability target will apply for the transport of products of economic operators delivering products to another economic operator within the same Member State. This obligation will cover pallets, boxes, excluding cardboard, plastic crates, intermediate bulk containers, and drums, of all sizes and materials, including flexible formats (Article 26 (13) PPWR).

• Sales packaging of certain alcoholic beverages (with the exception of wine) will have to meet a 10% reusability target, which in 2040 will be raised to 25% (Article 26 (4) PPWR). 

• The rules will be even more stringent for takeaway food, whose packaging will have to reach 40% reusability target by 2040 (Article 26 (3) PPWR). 

Economic operators placing reusable packaging on the market will have to ensure that compliance with the requirements set out in Article 10 (1) PPWR shall be demonstrated in the technical information concerning the packaging referred to in Annex VII. Further, a system for reuse compliant with the minimum conditions as set out in Annex VI to the PPWR must be in place (Articles 23 and 24 PPWR).

Minimal Size of Packaging

Article 9 PPWR requires that the weight and volume of packaging shall be scaled down to its minimum size with due account taken of the packaging’s safety and functionality. Packaging which is not necessary to comply with certain performance criteria set out in Annex IV³ and packaging with characteristics that are only aimed to increase the perceived volume of the product, including double walls, false bottoms, and unnecessary layers, shall not be placed on the market, unless the packaging design is subject to geographical indications of origin protected under Union legislation.

These obligations include transport packaging and compliance with these obligations shall be proven by technical documentation (Article 9 (4) PPWR).

Also, a new “empty space” ratio⁴ limit of 40% will require economic operators supplying products to a final distributor or consumers in grouped packaging⁵, transport packaging or e-commerce packaging to design their packaging in a way that no more than 40% of the total volume of packaging is empty space (for example, filled by bubble wrap or polystyrene) (Article 21 (1) PPWR).

Harmonized Labelling and Marking Requirements

Article 11 PPWR provides that packaging has to be marked with a label containing information on its material composition in order to facilitate sorting by consumers. The same labels shall be used on waste receptacles for consumers to easily identify the appropriate disposal route (Article 12 PPWR). At the discretion of the manufacturer, the harmonized labels may also be designed to inform about the recycled content in plastic packaging. Further, reusable packaging shall bear a QR code or other type of data carrier giving access to the relevant information facilitating its re-use. The Commission shall be empowered to establish, through implementing acts, harmonised labelling requirements and formats for packaging and waste receptacles as well as for identifying the material composition of packaging by means of digital marking technologies.

In addition to the labelling requirements laid down in Article 11 PPWR, Member States may provide for further labelling requirements, for the purpose of identifying the extended producer responsibility scheme or a deposit and return system other than those referred to in Article 44 (1) PPWR.

Set Up of Deposit Return Schemes

Complementary to the other requirements under the PPWR for improving the sustainability of packaging, a deposit return scheme (DRS; minimum requirements set out in Annex X) is to be set up by 1 January 2029 for all single-use plastic bottles and metal beverage containers with the capacity of up to three litres. Packaging containing wine, spirits, milk and milk products will be excluded. Member States are also allowed to include glass in the DRS and should ensure that DRS for single-use packaging formats, in particular for single-use glass beverage bottles, where technically and economically feasible, are equally available for reusable packaging (Article 44 PPWR).
Targets for reusable packaging will also be introduced in Article 26 PPWR, including for hot and cold takeaway beverages filled at the point of sale (20% must be supplied in reusable packaging within a reuse or refill system by 2030 and 80 % by 2040) and for takeaway ready meals (10% of goods must be supplied in reusable packaging by 2030 and 40% by 2040).  

Ban of Certain Single-Use Packaging

Certain forms of packaging will be banned according to Article 22 PPWR and Annex V. This concerns for example, single-use packaging for food and beverages when consumed inside restaurants and cafes, single-use packaging for fruits and vegetables, miniature shampoo bottles and other miniature packaging in hotels.

Sanctions

Member States shall lay down the rules for penalties in case of infringements of the PPWR and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.  

Practical Implications

• The measures will apply equally to European and imported goods. The draft regulation will affect many companies who either operate in the EU and/or also  who place products on the EU market.  

• While the proposal is only at the start of its legislative journey, businesses should familiarize themselves with the provisions introduced under the draft regulation to understand what is coming down the line and start to prepare.  

• Already now, businesses should align new developments of packaging systems with the future regulations in order to avoid investments in packaging systems that are not fit for the future.

• The proposed measures will give companies predictability and legal certainty, allowing for technological progress, and reducing costs through more consistent EU-wide rules in the packaging sector. In particular, the harmonization of labelling and regulations for disposable packaging will benefit many EU and non-EU companies and help reduce costs that currently arise due to deviating regulatory requirements in individual Member States.

• The proposed measures were specifically screened for impacts on SMEs⁶.  Packaging is a developing and innovative market, and SMEs are well positioned to succeed in the green transition. The Commission will also produce a guidance to help SMEs comply with the new rules⁷. 

• Packaging production and packaging waste management is an economically complex and important sector which has a significant role and potential in transforming Europe into a clean, sustainable, circular economy, in line with the European Green Deal.

Next Steps and Reactions

Amendments are likely to be made throughout the legislative procedure. For example, there could still be changes as to when which obligations actually come into effect. 
But still, this first draft gives a clear outline to the changes that the Commission hopes to bring into force.

The proposal is open for a public feedback until 5 April 2023. 

The initiative was sent to the European Parliament and the Council for examination. Next steps of legislative procedure will begin after the public feedback. The legislative process is expected to take more than 18 months. Once adopted, the proposal would come into force on the 20th day after its publication in the Official Journal of the European Union. Its provisions would apply after 12 months or later from the date of entry into force. 

The authors would like to thank legal research assistant Pauline Lehmann for her active and valuable contribution to this article.

References:

1 'Packaging’ is any material used to hold, protect, handle, deliver and present goods. This includes packaging for raw materials right through to finished goods to be sold or being sold. For example, pallets, boxes, bags, tape for wrapping, rolls, tubes and clothes hangers sold as part of the clothing item (cf. Article 3(1) PPWR).

2  “Innovative Packaging” means a form of packaging that is manufactured using new materials, design or production processes, resulting in a significant improvement in the functions of packaging, such as containment, protection, handling, delivery or presentation of products, and in demonstrable environmental benefits, with the exception of packaging that is the result of modification of existing packaging for the sole purpose of improved presentation of products and marketing (Article 3 (37) PPWR).

3 product protection, packaging manufacturing processes, logistics, Information requirements, hygiene and safety. legal requirements, recycled content, recyclability and re-use

4 Understood as the difference between the total volume of grouped packaging, transport packaging or e-commerce packaging and the volume of contained sales packaging (Article 21 (2)(b) PPWR).

5 Grouped packaging means packaging conceived so as to constitute a grouping of a certain number of sales units at the point of sale whether the latter is sold as such to the end user or it serves only as a means to replenish the shelves at the point of sale or create a stock-keeping or distribution unit, and which can be removed from the product without affecting its characteristics (Article 3 (3) PPWR).

6 EU, Press Release,of 30 November 2022, access here: Questions & Answers on Regulation on Packaging and Packaging (europa.eu) (lastly accessed on 09.02.2023).

7 Ibid.

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