The EU Institutions are currently adding the finishing touches to the new Packaging & Packaging Waste Regulation (“PPWR”) which is expected to be adopted in Q4 2024 or Q1 2025. While many companies are fully preoccupied with preparing for other EU legislation (e.g. the Deforestation Regulation) – companies will ignore the PPWR at their peril. The PPWR contains a host of ambitious legal targets and requirements – which industry will find it difficult to achieve in practice. And the deadlines to comply – are perhaps even more challenging. Companies will need to start preparing for the EU PPWR now, to avoid serious problems – including supply-chain disruption, penalties and litigation – in the future.
The PPWR
The PPWR is a new EU Regulation which will repeal and replace the current Packaging & Packaging Waste Directive - i.e. Directive 94/62/EC (“the PPWD”).[1] It aims to realize the underlying objectives set out in the European Green Deal, the Circular Economy Action Plan and the Plastics Strategy. In essence, the PPWR will regulate packaging and certain packaging-related products placed on the EU/EEA market. This includes consumer packaging. It also includes, transport, industrial and other packaging products such as pallets, pallet wrapping, crates and boxes. At core, the PPWR aims to ensure these products are safe and sustainable. In principle it will not be possible to place these products on the EU market, unless they meet the sustainability, labelling and other requirements set out in the PPWR. However, the PPWR does not merely regulate the placement on the EU market of these products. Instead it also regulates the full lifecycle of these products. This includes, in particular: packaging reduction, reuse, and recycling. One of the main differences between the PPWD and the PPWR is the PPWR’s focus on the prevention of packaging waste.
Core requirements of the PPWR
The PPWR contains a number of new legal requirements and legal targets – not contained in the PPWD. Many of these are highly ambitious, and may stretch industry to the very limits of what is possible in reality. They also come with extremely challenging deadlines and application dates. Some of the core requirements include the following.
Recyclability and recycled content requirements
The PPWR requires that all relevant packaging is both capable of being recycled and, in addition, that it contains a certain amount of recycled content. To ensure that packaging is capable of being recycled, the PPWR sets out recyclability requirements. These include obligations regarding ‘design for recycling’, and ‘recycling at scale’. In principle, all relevant packaging must comply with the ‘design for recycling’ requirements by 2030, and the ‘recyclability at scale’ requirements by 2035. As regards the recyclability criteria: The Commission is required to adopt a Delegated Act laying down specific design for recyclability criteria, which will form the basis of recyclability performance grades (A, B and C). Those grades will dictate and determine which packaging will be allowed to be placed on the EU market in the (near) future. As regards the recycled content requirements: The PPWR requires that packaging materials (e.g. paper, plastic, wood, etc) contain a certain amount of recycled content by certain deadlines. Again, the recycled content requirements are highly ambitious and set tight deadlines to comply (generally at least 55% recycled content for all materials excluding wood – 30%). Generally speaking, the PPWR requires that the recycled content is PCR (i.e. Post-Consumer Recycled) – meaning it is sourced from post-consumer waste. However, there are some possible exceptions. Whether there is enough PCR feedstock in the future to achieve these legal targets in reality – is one of the issues which is currently unclear.
Packaging minimization requirements (light-weighting)
The PPWR does not merely aim to eliminate packaging waste. In addition, the PPWR aims to eliminate certain forms of packaging itself. In principle, where packaging is ‘unnecessary’ it may be regarded as prohibited. If, for example, the function of the packaging is not to protect or safely store a product – but is merely a means of enticing consumers to buy – it may constitute unnecessary packaging – and not be legally permissible. Packaging would need to be designed so that its weight and volume is reduced to the minimum necessary for ensuring its functionality, considering the shape and material it is made of. Economic operators filling the packaging in grouped packaging, transport packaging or e-commerce packaging will have to ensure that the empty space ratio does not exceed 50%.
Substances of concern requirements
The new PPWR includes the prohibitions currently set out in the PPWD (e.g. as regards heavy metals, hexavalent chromium, etc). In addition, the PPWR includes new prohibitions such as on the use/presence of PFAS above certain thresholds in food contact materials. The PFAS ban under the PPWR is of concern to some in the industry as it would likely apply before the REACH Restriction – and therefore industry would have less time to comply with the PPWR ban. The PPWR also establishes a legal system whereby the Commission is able to adopt new prohibitions on substances of concern under the PPWR (via Delegated Acts etc.) in the future. It should be noted that the definition of ‘substances of concern’ under REACH, ESPR and the PPWR – is not aligned, and therefore substances may be regarded as Substances of Concern under the PPWR where they are not, per se regarded as Substances of Concern under other EU legislation. In general, all packaging will be required to be manufactured in such a way so as to minimize the presence and concentration of substances of concern as constituents of the packaging material or of any of the packaging components, including with regard to their presence in emissions and any outcomes of waste management, with limited exceptions.
Prohibitions on packaging
The PPWR shall prohibit the placing on the EU market of certain types of single-use packaging e.g. certain plastic packaging. The prohibitions on certain plastic packaging under the PPWR, would generally apply in addition and on top of the bans on single-use plastics under the Single-Use Plastics (SUP) Directive - Directive (EU) 2019/904. The PPWR shall also prohibit packaging which groups or binds products together – not to facilitate the transportation or handling of those product – but which groups or binds products together so as to entice consumers to buy more. Certain ‘over’ packaging would also be prohibited.
Other requirements
The PPWR contains a number of other legal requirements companies will need to understand and prepare for. Those include, for example:
- Re-use targets: The re-use targets depend on the type of packaging used by operators (e.g. alcoholic/non-alcoholic beverages, etc), transport and sales packaging (excluding packaging for dangerous goods or large-scale equipment, and flexible packaging in direct contact with food), and grouped packaging. Companies in the Hotel, Restaurant and Catering industry (“HORECA” sector) offering cold or hot beverages filled into a container at the point of sale for take-away, or ready-prepared food intended for immediate consumption, will be required to provide a reuse and refill systems.
- Labelling requirements: A harmonized labelling system will be introduced, aimed at providing information to consumers about material composition and reusability of packaging in order to facility consumer sorting.
- Conformity assessment requirements: Packaging manufacturers will be required to perform a compliance assessment and issue a declaration of conformity before placing packaging on the EU market.
- Other requirements: e.g. Extended Producer Responsibility (EPR) schemes, Deposit return systems (DRS), etc.
What should companies do now?
Companies need to start preparing for the PPWR now. More specifically companies should, for example:
- Identify which products they (as a company) produce or use which fall within the scope of the PPWR. They should also identify which products in their supply chains are of critical importance to continued supply of their raw materials, and fall within the scope of the PPWR.
- Set out strategic plans on how each product will comply with the PPWR by the relevant deadlines – or will be replaced by products which comply with the PPWR by relevant deadlines. This is particularly important as companies will likely need to have contingency plans in place, if initial plans prove impossible in reality. If, for example, companies cannot access enough PCR material to satisfy recycled-content requirements – they may need to determine what other measures they can take to comply with the PPWR. If, in some EU Member States, there is simply an absence of infrastructure to obtain recycled feedstock in order to satisfy the recycled-content requirements on time – companies will need to consider what can be done to comply with the PPWR. If companies cannot ensure all substances of concern are removed from recycled-feedstock and are not present in materials (e.g. because suppliers of the recycled-content feedstock cannot guarantee the absence of substances of concern) – companies will need to understand how else they will comply with the PPWR.
- Engage with the supply chain and minimize the risk of any disruption of continued supply (including obtaining guarantees, warranties, indemnities from suppliers, and imposing requirements to notify companies downstream for unintended supply of materials containing substances of concern, etc).
- Monitor other related-legislation including: EU legislation, such as EU legislation which may impact the identification of substances of concern (REACH, BPR, food contact materials legislation, cosmetics, etc), but also other EU law such how the Single Use Plastics Directive, the ESPR, may interact with the PPWR, as well as other law such as the incoming UN Plastic Pollution Treaty, etc.
[1] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01994L0062-20180704
