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EU Green Reforms: EU Packaging and Packaging Waste Regulation

Posted on 6 June 2024

The EU's Packaging and Packaging Waste Regulation (PPWR) will introduce comprehensive requirements for the lifecycle of packaging, aiming to enhance sustainability practices across the European Union. It is essential for businesses operating in, or exporting their products to, the EU to understand these changes and to take proactive steps to ensure compliance.

The European Parliament has formally adopted the Regulation. However, the European Council must also formally adopt the same text before the Regulation can be published in the Official Journal of the EU and enter into force. This is currently expected to happen in autumn 2024. Many of the changes will likely come into force a few years after this, but businesses should start preparing now.

In particular, given the focus in the PPWR on packaging minimisation, businesses that use distinctive and creative forms of packaging should consider the impact it may have on any intellectual property rights in that packaging, such as trade marks and designs. As part of this assessment, one point to factor in is that, where packaging is protected by certain trade marks and designs at the time the PPWR enters into force (as noted, this is currently anticipated to be autumn 2024), the relevant minimisation rules may not apply. Where appropriate, manufacturers should therefore be considering whether to obtain IP protection for relevant packaging in the EU in advance of the PPWR coming into force.     

The PPWR's obligations extend to a broad spectrum of businesses, including manufacturers, suppliers of packaging, importers, distributors, authorised representatives, and fulfilment providers. The PPWR includes (Annex 1) an indicative list of items falling within the definition of packaging, which covers items that may not traditionally be considered as 'packaging', including coat hangers sold with clothes and mascara wands.

Key provisions of the PPWR

The PPWR mandates that all packaging placed on the EU market must be recyclable (with a few exemptions), meeting specific design criteria for recycling. Any plastic part of packaging must contain a minimum percentage of recycled content recovered from post-consumer plastic waste. Packaging must also be manufactured to minimise the presence and concentration of substances of concern.

From 1 January 2030, manufacturers or importers must ensure that packaging placed on the market in the EU is designed so that its weight and volume is reduced to the minimum necessary for ensuring its functionality, taking account of the shape and material that the packaging is made of. Manufacturers and importers must ensure that the following packaging is not placed on the EU market:

  1. Packaging which does not comply with certain performance criteria set out in Annex IV of the Regulation e.g. relating to 'product protection' or 'hygiene and safety'
  2. Packaging with characteristics that are only aimed to increase the perceived volume of the product, including double walls, false bottoms, and unnecessary layers  

However, there is an exception to this rule if the packaging design is protected by EU trade marks or designs (or national trade marks or designs in EU member states) at the date the PPWR comes into force (currently anticipated to be autumn 2024) and where the application of the packaging minimisation requirements affects (1) the packaging design in a way that it alters its novelty or its individual character, or (2) the trade mark in a way that the trade mark is not capable anymore to distinguish the marked good from those of other undertakings.

Businesses that fill packaging in grouped packaging, transport packaging, or e-commerce packaging must ensure that the empty space ratio is maximum 50 %. Businesses that fill sales packaging must also ensure that empty space is reduced to the minimum necessary for ensuring the packaging functionality, including product protection. Space fillers such as paper cuttings and Styrofoam chips will all be considered empty space.

From 1 January 2030, businesses will not be allowed to place certain packaging formats on the market (a full list is set out in Annex V). This includes very lightweight plastic bags (with a few exemptions).

Packaging must include labels detailing its material composition and, where applicable, whether compostable. QR codes for additional information may be used and clear labels for deposit and return systems are also required. Environmental claims concerning packaging properties must fulfil certain criteria.

Waste management is another critical aspect of the PPWR. Member States are tasked with establishing deposit return systems and encouraging reuse and refill systems. Producers have extended producer responsibility for packaging that they make available for the first time on the EU market, including financial contributions to cover waste management costs.

Consequences of non-compliance

Member states will determine penalties for non-compliance, which must be proportionate and dissuasive. For packaging presenting a risk to environmental or human health, economic operators may be required to rectify non-compliant packaging, prohibit its market availability, or recall it.

How does this compare to the UK?

Prior to the general election being called for 4 July, the government had put in place plans to implement a deposit return scheme (DRS) for single-use drink containers in England and Wales by 2027 and new rules were also introduced last year to ban many single-use plastic items e.g. single use plastic plates.

Extended Producer Responsibility for Packaging (EPR) is being introduced in the UK. Whilst the government had decided to defer EPR for packaging fees for a year (to October 2025), it is still necessary to report packaging data. Changes to the data that must be collected and reported on in England took effect on 1 April 2024 (when The Packaging Waste (Data Reporting) (England) (Amendment) Regulations 2024 came into effect). On 2 May 2024, the government published the draft Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024. These Regulations would introduce the EPR regime for packaging and were intended to come into force by 1 January 2025, for implementation in 2025. Developments in the UK should be monitored following the general election.

How should you prepare?

Businesses should begin by assessing their packaging to understand the extent of compliance required. Engaging with stakeholders, including packaging manufacturers and suppliers, is crucial to ensure awareness and readiness for the new legislation. Reviewing contracts to ensure compliance with local legislation and the ability to modify packaging specifications is also advisable. Where appropriate, brand owners should also consider taking steps to protect their packaging as registered trade marks or designs in the EU ahead of autumn 2024, provided the relevant criteria for protection can be met.

The PPWR is part of a sweep of new green reforms being introduced by the EU, including digital product passports and new measures to combat greenwashing. We have produced a handbook for the retail sector to summarise some of the new rules which you can access here.

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