Last week the European Commission published its long-awaited proposal for a Packaging and Packaging Waste Regulation (“proposed Regulation”), and a Communication on an “EU Policy Framework on Biobased, Biodegradable and Compostable Plastics” (“Communication”).  The proposed Regulation is intended to replace the Packaging and Packaging Waste Directive 94/62 (“Packaging Directive”) and to ensure that all packaging marketed in the EU/EEA is fully recyclable or reusable by 2030.  If adopted, the proposed Regulation’s new requirements and restrictions will have a significant impact on industry, distributors, and consumers.  The European Parliament and Council must now consider the proposed Regulation for adoption through the so-called “ordinary legislative procedure,” which will allow for the introduction of amendments and is likely to take at least 18 months.  

This blog post highlights the main changes and new requirements that the proposed Regulation would introduce, and outlines the principal recommendations of the Commission’s Communication.

Main changes introduced by the proposed Regulation

The proposed Regulation would introduce the following eight main changes:

1.         Adoption of a Regulation.  The first important change is that the EU legislation on packaging and packaging waste would take the form of a Regulation rather than a Directive.  This, together with the harmonization clause of Article 4 of the proposed Regulation and the inclusion of certain packaging items in the definition of Article 3, is intended to limit Member States’ attempts to impose additional requirements on packaging. 

2.         Ban on Certain Packaging Formats.  The proposed Regulation would also propose to ban single-use packaging formats, including single-use composite packaging (e.g., containers); single-use packaging for fresh fruits and vegetables; single-use plastic grouped packaging used to group cans, tubs, tins and pots together; single-use hotel miniature packaging (e.g., sachets around miniature bar soap); and single-use plastic and composite trays and boxes for foods and beverages in the HORECA sector (e.g., trays or boxes used to wrap hamburgers).

3.         Compostability Requirements.  The proposed Regulation would also require that particular categories of packaging (e.g., sticky labels attached to fruits and vegetables, very lightweight plastic carrier bags, and tea and coffee bags and single-serve units intended to be used and disposed of with the product) be “compostable in industrially controlled conditions in bio-waste treatment facilities.”  The proposed Regulation does not itself  define the criteria that these types of packaging must meet to be compostable.  However, its Impact Assessment states that companies may demonstrate the compostability of their packaging on the basis of existing EU harmonized standards, such as, e.g., Standard EN 13432:2000.  European authorities are also likely to take into account the compostability criteria for plastics of the Communication (see below).

The proposed Regulation would also empower the Commission to subject other packaging items to the obligation to be compostable through delegated acts if justified and appropriate due to technological and regulatory developments impacting the disposal of compostable packaging and if the packaging meets the criteria of Annex III.

Other types of packaging that are not subject to the compostability obligation mentioned above would have to be designed in a way that they can be recycled without affecting other waste streams (such as the bio-waste waste streams).  Contrary to earlier version of the proposal, the proposed Regulation does not seem to impose a general ban on compostable plastic polymers. 

4.         New Deposit and Return Schemes.  The proposed Regulation would require EU Member States to put in place deposit and return schemes for single-use plastic and metal beverage bottles of up to three liters (with the exception of wine, spirits and milk). 

In addition, the proposal would also require Member States to encourage the introduction of systems for the reuse and refill of packaging in an environmentally sound manner.

5.         New Reusability Requirements and Targets.  The proposed Regulation would establish new criteria to assess whether packaging is reusable.  To be reusable packaging must be: (i) emptied and unloaded without any damage that would prevent its re-use and without any risk to the health and safety of its user; (ii) conceived with the intention to be reused or refilled; (iii) reconditioned while maintaining its ability to perform its packaging function. 

In addition, the proposed Regulation would impose new reusability and refill targets.  For example, it would require that by 2030, 20% of takeaway beverage sales in the HORECA sector be served in reusable packaging or using the customers’ own containers, with the target increasing to 80% by 2040.

6.         New Minimum Recycled Content Requirements.  The proposed Regulation would also increase the existing recycled content targets.  For example, single-use plastic beverage bottles would be required to have a minimum of 30% recycled content by January 1, 2030; contact-sensitive packaging made from polyethylene terephthalate (PET) as their major component would also be required to have a minimum recycled content of 30% by January 1, 2030; contact-sensitive packaging made from other materials would be required to have a minimum recycled content of 10% by January 1, 2030; and other packaging would be required to have a minimum recycled content of 35% by January 1, 2030.

7.         New Recycling Target.  The proposed Regulation would also impose higher recycling targets on packaging , e.g., EU Member States would be required to ensure that 65% by weight of all packaging waste generated in their territory is recycled by December 31, 2025, with specific percentages for the various packaging materials (e.g., 50% of plastic, 70% of glass, 25% of wood).

8.         New Labelling Requirements.  The proposed Regulation would also require that all packaging, with the exception of transport packaging not used for e-commerce, carry a label containing information on the material composition of the packaging.  Packaging that is subject to a deposit and return scheme would also have to display a harmonized label that the Commission must define. 

Furthermore, all reusable packaging would be required to display a label on the reusability of the packaging and a QR code or another digital data carrier with additional reusability information.

Communication on a “EU Policy Framework on Biobased, Biodegradable and Compostable Plastics”

The Communication seeks to bring clarity on the different concepts of bio-based, biodegradable and compostable plastics, and complements the provisions of the proposed Regulation, especially on compostability.  EU Member State authorities and courts are likely to use the Communication’s criteria to assess company’s claims on biobased, biodegradable and compostable plastics.

  • The Communication defines biobased plastics as those made from biomass, instead of fossil resources.  The claim “biobased” should only be used where the exact and measurable share of biobased plastic content in the product is specified, in order for consumers to know how much biomass has actually been used in the product.  The Communication adds that the biomass used must be sustainably sourced, with no harm to the environment.
  • Biodegradable plastics are defined as plastics that are “designed to decompose at the end of their life by the conversion of all their organic constituents (polymers and organic additives) mainly into carbon dioxide and water, new microbial biomass, mineral salts and, in the absence of oxygen, methane.”  The Communication clarifies that to biodegrade, plastics need a suitable environment and specific time.  The Communication states that, when using such products, it should be made clear that they should not be littered, they should mention how long the product needs to fully biodegrade, and under which circumstances and environment (e.g., soil, water).
  • The Communication defines compostable plastics as “a subset of biodegradable plastics designed to biodegrade under controlled conditions, typically through industrial composting in special facilities for composting or anaerobic  digestion.”  For this type of plastic, the Communication states that only industrially compostable plastics, which comply with relevant standards, should be labelled as “compostable.”  Moreover, industrially compostable packaging should display how the waste item should be disposed of through the use of a pictogram.  The Communication also explains that home composting for plastics should only be considered in the context of specific local conditions under the supervision of the authorities and provided that the use of such plastics has clear added value.

Next Steps

As indicated above, the European Parliament and the Council of the EU must now consider the proposed Regulation for adoption through the so-called “ordinary legislative procedure.”  This gives an opportunity for industry and stakeholders to suggest amendments to the proposal. 

Photo of Cándido García Molyneux Cándido García Molyneux

Cándido García Molyneux provides clients with regulatory, policy and strategic advice on EU environmental and product safety legislation. He helps clients influence EU legislation and guidance and comply with requirements in an efficient manner, representing them before the EU Courts and institutions.

Cándido…

Cándido García Molyneux provides clients with regulatory, policy and strategic advice on EU environmental and product safety legislation. He helps clients influence EU legislation and guidance and comply with requirements in an efficient manner, representing them before the EU Courts and institutions.

Cándido co-chairs the firm’s Environmental Practice Group.

Cándido has a deep knowledge of EU requirements on chemicals, circular economy and waste management, climate change, energy efficiency, renewable energies as well as their interrelationship with specific product categories and industries, such as electronics, cosmetics, healthcare products, and more general consumer products.

In addition, Cándido has particular expertise on EU institutional and trade law, and the import of food products into the EU. Cándido also regularly advises clients on Spanish food and drug law.

Cándido is described by Chambers Europe as being “creative and frighteningly smart.” His clients note that “he has a very measured, considered, deliberative manner,” and that “he has superb analytical and writing skills.”

Photo of Lucas Falco Lucas Falco

Lucas Falco, a Belgian qualified lawyer, is an associate in the Public Policy Practice Group. Lucas advises clients on EU public policy strategy and regulatory law with a particular focus on food, drugs and devices, environment, international trade, data privacy, and gaming.

His…

Lucas Falco, a Belgian qualified lawyer, is an associate in the Public Policy Practice Group. Lucas advises clients on EU public policy strategy and regulatory law with a particular focus on food, drugs and devices, environment, international trade, data privacy, and gaming.

His experience covers representing multiple international clients, such as EU trade associations on multiple aspects of EU law (including representation before courts and strategic advice).

Lucas also worked with EU Member States on EU public policy, providing him with considerable knowledge and insights in various procedures at national and EU level, such as the notification Directive, implementation of EU law at the national level (including drafting of national implementation acts) and infringement proceedings.

Lucas has significant experience in advocacy strategy and regulatory advice.

His expertise encompasses a broad range of environmental issues (e.g., single-use plastics, waste, hand hygiene), food and beverages (labeling requirements, market access), drugs and devices (market access, IPR), gaming, and international trade and customs (TRQs).