The European Commission (EC) proposal to regulate packaging and packaging waste (PPWR),[1] issued on 30 November 2022, and now before the European Parliament (EP) and the Council, is intended to repeal and replace the current Packaging and Packaging Waste Directive (PPWD).[2] The choice of a switch from a Directive to a Regulation is intended to lead to greater harmonization on the implementation of measures among the EU Member States. Specifically, while Directives set forth goals and obligations to be met by the Member States, the means of their implementation is left to the discretion of the national authorities. This has led to significant discrepancies between the Member States with regard to extended producer responsibility (EPR) and environmental labeling obligations. By contrast, Regulations are effective throughout the Member States such that this issue does not arise.

In addition to fostering greater harmonization, the PPWR is intended to bring about significant changes in the legislative framework for packaging waste in the EU by defining ambitious targets, boosting high quality ‘closed loop’ recycling, and reducing the need for primary natural resources. This article is intended to highlight some significant changes proposed in the PPWR.

I. Extended Producer Responsibility

EPR obligations are currently largely left to the discretion of the Member States. This has led to noticeable discrepancies in the scope and content of EPR obligations, with some Member States having system participation, collection, registration, and information obligations, while other Member States maintain more minimal requirements. The PPWR would harmonize fundamental concepts by defining terms such as ‘manufacturer,’ ‘importer,’ ‘producer,’ ‘economic operator,’ ‘supplier,’ and ‘authorized representative’ and outlining their respective obligations.
 
By way of example, the PPWR would introduce a national registration obligation for producers prior to placing packaging on the market of each Member State. The EC would publish implementing acts establishing the format for registration in, and reporting to, the register, the specific data required to be reported, and the packaging and material types to be reported. The PPWR would additionally require ‘producers’ to either become members of national producer responsibility organizations, or, in the alternative, fulfill producer responsibility obligations individually. The goal is to create greater harmonization among national EPR schemes, although divergences may still arise.

II. Packaging Design

A. Heavy Metals

The PPWR (as proposed by the EC) would require that the presence of lead, cadmium, mercury, and hexavalent chromium be minimized with the concentration level of all four heavy metals not exceeding 100 mg/kg. Recyclability requirements established by delegated acts would not restrict the presence of other substances in packaging primarily for reasons of chemical safety but rather address substances of concern that negatively impact the re-use or recycling of packaging and packaging components. However, the EP’s Committee on the Environment, Public Health and Food Safety (ENVI ), the main EP committee in charge of the examination of the text, proposed an amendment to the effect that a substance may be restricted if there is an unacceptable risk to human health or to the environment arising from its use or presence in the manufacturing of the packaging.[3] Hence, it is possible that the final text may also focus on the safety of components even if this aspect is already regulated by the food contact legislation in the food packaging field (noting that ENVI Committee’s report proposing this amendment is still merely a draft).

B. Recyclability

The PPWR would require that all packaging be recyclable. Specifically, by 1 January 2030, packaging would need to comply with design for recycling criteria, and by 1 January 2035 recyclable packaging would be required to comply with recyclability at scale requirements. Both criteria would be established by delegated acts with no timeline set for drawing up these pieces of legislation. The criteria may vary depending on the material (30 categories of materials are listed in Annex II of the PPWR), while there would be an exemption for “innovative” packaging for a maximum period of 5 years.

C. Recycled Content in Plastic Packaging

The PPWR proposes to increase the recycled content of plastic packaging. By way of example, in the plastic part of certain “contact sensitive” packaging (which includes food packaging), mandatory targets for recycled content required to be recovered from post-consumer waste are set out as follows (expressed per unit of packaging):[4] 

Compostable packaging would be exempted from the recycled content requirement.

D. Packaging Minimization

The PPWR would require that packaging be reduced to the minimum necessary for ensuring its functionality. Packaging not necessary to satisfy certain performance criteria and packaging only intended to increase the perceived volume of the packaging would be banned unless subject to geographical indications of origins protected under EU law. The PPWR stresses that empty space must be reduced to the minimum necessary. Further, economic operators who supply products to a final distributor or end user in grouped packaging, transport or e-commerce packaging must ensure that the ratio of empty space in the packaging in relation to the packaged product(s) is a maximum of 40%.

E. Restrictions on Certain Packaging Formats

On a related note, the PPWR would ban several types of single-use packaging, including: 

• Packaging used by retailers to group goods sold in cans, tins, pots, tubs, and packets designed to enable or encourage end-users to purchase more than one portion
• Packaging for less than 1.5 kg fresh fruit or vegetables unless needed to avoid water loss, turgidity loss, microbiological hazards, or physical shocks
• Packaging for foods and beverages filled and consumed within premises in the hotels, restaurants, and catering (HORECA) sector (applicable from 1 January 2030)
• Packaging in the HORECA sector containing individual portions or servings (e.g., coffee creamers, sugar, sauces)

F. Re-use and Re-fill Targets

According to the PPWR, business operators making use of reusable packaging would be obliged to participate in one or more systems for re-use that meet specific requirements (the PPWR would set conditions for closed loop and open loop systems). It would also require Member States, by 1 January 2029, to ensure that deposit and return schemes (DRS)[5] are set up for: 

• Single use plastic beverage bottles with a capacity of up to 3 liters
• Single use metal containers with a capacity of up to 3 liters

There are many requirements in the PPWR intended to promote re-use or re-fill solutions. For example, 

• 20% of hot and cold beverages filled into a container at the point of sale would need to be made available in re-usable packaging within a system for re-use or by enabling refill by 1 January 2030 (this would increase to 80% by 1 January 2040)
• 10% of take away pre-prepared food intended for immediate consumption would need to be made available in re-usable packaging within a system for re-use and refill by 1 January 2030 (this would increase to 40% by 1 January 2040)
• 10% of non-alcoholic beverages would need to be made available in reusable packaging within a system for re-use or by enabling refill by 1 January 2030 (this would increase to 25% by 1 January 2040)

There are exemptions for economic operators to certain re-use or re-fill targets based on the amount of packaging placed on the market (< 1000 kg per year) or their micro-company status or their sales area (not more than 100 m², including all storage and dispatch areas).

G. Declaration of Conformity and Technical Documentation

The manufacturer of the packaging would be required to carry out a conformity assessment, draw up a Declaration of Conformity, and maintain this together with the technical documentation specified in the PPWR on file for 10 years after the packaging is placed on the market. They must also be made available to the Member State enforcement authorities upon request. If the manufacturer is outside of the EU, the importer would assume responsibility for the EU Declaration of Conformity and technical documentation.

III. Compostable Packaging

The PPWR foresees that tea and coffee bags and single-serve units, sticky labels for fruits and vegetables, and very lightweight plastic carrier bags shall be compostable in industrially controlled conditions. While an earlier draft of the PPWR had foreseen a limitation on the use of compostable materials for other types of packaging, the EC’s proposed text for the PPWR simply would require that compostable packaging allow material recycling without affecting the recyclability of other waste streams.

IV. Environmental Labelling

The PPWR would introduce labelling requirements for packaging. For example,

• Packaging would need to be labelled with information on the material composition
• Packaging would be required to bear a label on packaging reusability and a QR code/other digital data carrier providing information on system for re-use and collection points
• Packaging subject to a DRS would also need to bear an additional harmonized label

Several Member States, including France and Italy, have introduced environmental labelling obligations. The PPWR aims to tackle national labelling requirements which can limit the free movement of packaging throughout the EU. The PPWR would limit Member States’ capacity to introduce mandatory labeling requirements by prohibiting any restriction on the placing on the market of packaging that complies with the PPWR labeling obligations. By way of exception, the PPWR would allow Member State-specific labeling requirements to identify participation in a national EPR scheme or a DRS (other than DRSs set up under the PPWR for single-use plastic beverage bottles and single-use metal beverage containers).

V. Next Steps

The PPWR is currently under examination by the EP and the Council having undergone a public consultation between 1 December 2022 and 24 April 2023. While the Council has not published its position, Italy, Romania, the Czech Republic, Spain, and Poland have submitted comments on the draft text.[6] On the EP’s side, the ENVI Committee issued its draft Report on 11 April 2023. The Committee’s proposed amendments to the EC’s proposal notably include the introduction of a ban on per- and polyfluoroalkyl substances (PFAS) in paper and cardboard food packaging, stressing the necessity to assess the need for recycled content requirements for materials other than plastics and reinforcing the plastic recycled content requirements, the setting of specific waste reduction targets for plastic packaging and the introduction of a definition for ‘biodegradable packaging’.

The Committee is expected to vote on its final position on 24 October 2023. The Committee’s position is scheduled for discussion in the EP’s plenary session of 20 November 2023. The PPWR might be adopted early next year but with the EP elections scheduled for spring 2024, it would seem that late 2024 may be a more realistic (and still optimistic) timeframe. Clearly, the PPWR, with its ambiguous targets, notably with respect to recyclability and recycled content, may pose many challenges for industry.

[1] The PPWR and its annex are available at: https://ec.europa.eu/transparency/documents-register/detail?ref=COM(2022)677&lang=en 

[2] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31994L0062 

[3] ENVI committee = Committee on the Environment, Public Health and Food Safety

[4] SUP = single-use plastic; PET = polyethylene terephthalate

[5] Packaging containing wine, aromatized wine products, spirit drinks as well as milk and certain milk products are exempted from the DRS

[6] Available at: https://connectfolx.europarl.europa.eu/connefof/app/exp/COM(2022)0677