Where does the responsiblity lie?

Producer responsiblity for packaging waste is at the top of every industry’s agenda. Cate Sharp, partner and UK head of environment group at international law firm Mayer, Brown, Rowe & Maw, explains the legal side of packaging waste regulations.

The Producer Responsibility Obligations (Packaging Waste) Regulations (the ‘Regulations’) were the first attempt in the UK to introduce the concept that the producer of goods should be legally responsible for recovering and recycling a proportion of the products it sells.

However, despite having been brought into force some five years ago, confusion about the requirements of the Regulations remains widespread: it was estimated, for example, in 2000, that 650 businesses which were obligated under the Regulations had failed even to comply with the requirement to register the fact that they were ‘producers’ of waste under the Regulations.

This article briefly summarises the main requirements of the Regulations and looks at two important cases in which some of the difficulties surrounding their application, have been considered by the courts.

The Regulations apply to producers of packaging, for example, those businesses that put goods into packaging or supply packaging to a user or consumer. In addition, in order to fall within the scope of the Regulations, the business must handle at least 50 tonnes of packaging a year and have an annual turnover of at least £2 million.

If a producer satisfies these threshold tests, it will be required to register with the Environment Agency and then recover and recycle specified percentages of packaging waste. As a general rule, businesses must re-assess whether they are obligated on a yearly basis and register, where necessary, by 7 April each year.

A large amount of the confusion surrounding the Regulations arises from the definition of ‘Packaging’ in the Regulations.

In January 2001, the High Court made its first decision regarding the interpretation of the Regulations. The case involved Hillier Nurseries, who had argued, at a prosecution brought by the Environment Agency, that the plastic plots in which they sold plants grown from cuttings, did not amount to packaging. In the words of the Regulations they were not, it was argued, ‘conceived so as to constitute a sales unit’.

A plastic dilemma

Hillier Nurseries argued that because the plastic pots were designed for the primary purpose of assisting in the growth of the plants, they were integral to the growing process and were not, therefore, packaging.

However, the High Court held that, although it was correct to look at the purpose of the pots at the time the plants were put into them, their continued use should also be considered. As the plants were also placed in the pots for the purpose of selling them, the Court concluded that the pots did constitute packaging.

A second High Court decision was made earlier this year with respect to who is deemed responsible under the Regulations, a second area of confusion. The Environment Agency had always asserted that the obligations under the Regulations with respect to bottled drinks in pubs, bars, off-licences and restaurants fell on the brewer as supplier of the bottles rather than the publicans or restaurant owners. The publican (or restaurant owner), the Environment Agency argued, only sold the drink and not the bottle.

In the judge’s view, when the brewer put the beer into the bottle, it could not have known where the beer would have been drunk: it could have been purchased in an off-licence and drunk by the customer at home. Therefore, the bottle was part of the sales unit to the customer, not just the drink, so more responsibilities under the Regulations fell on the publican or owner.

The brewery is considered to be a ‘packer/filler’ and required to recycle a lesser amount. As a result of this decision, waste drinks packaging will now be the responsibility of the owner of the premises where it is sold, whether it be a pub, bar, off licence or restaurant.

This decision may have far reaching consequences beyond merely extending obligations to owners and publicans. The majority of the pubs, bars, off-licences and restaurants supplied by breweries will not fall under the Regulations because they are unlikely to meet the 50-tonne packaging or £2 million pound turnover thresholds. That, in turn, means that the amount of packaging waste being recovered and recycled could actually fall as a result.

Recovery obligations

European Union Member States were required to recover between 50 per cent and 65 per cent of packaging by 2001, but proposed amendments to the Directive agreed at the European Environment Council Meeting in Luxembourg on 17 October, will increase these figures to between 55 per cent and 80 per cent by 2008.

The fall in packaging waste being recovered and recycled outlined above could therefore pose a significant problem for the government in meeting these tighter future targets and may well result in pressure being placed on the Environment Agency to achieve a greater degree of compliance with the Regulations by adopting a more aggressive enforcement policy in relation to breaches of the Regulations.

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