Citing a responsibility to tackle the problem of marine litter originating from Europe, on May 28, 2018, the European Commission presented a proposal for a Directive on Single Use Plastic Products that if adopted will restrict and increase the costs of marketing different categories of single use plastic products and fishing gear containing plastic.  Many plastics, such as polypropylene, are produced from petroleum derivatives.  The proposal is one of the main measures that the Commission announced in its Strategy for Plastics in a Circular Economy and is mainly intended to address plastic marine litter in oceans and seas.

Under the Strategy for Plastics in a Circular Economy, the European Chemicals Agency is also considering the restriction of microplastic particles intentionally added to preparations, such as cosmetics, and the use of oxo-degradable plastics.  In addition, the Commission is contemplating measures for microplastics not intentionally added but generated during the use of products, such as tires and textiles.

Separately, the European Commission recently proposed the adoption of a Member State contribution to the EU budget of 0.80 Euro per kilogram of plastic packaging waste that is not recycled, which could raise around 7 billion Euro a year.

Single Use Plastic Products

The proposal claims to focus on the ten most found single use plastic products that wash up on European beaches as well as fishing gear, which together represent around 70% of marine litter items by count.  It targets single use plastic products even if they are recyclable.  Its scope includes food containers; cups for beverages; cotton bud sticks; cutlery, plates, stirrers, and straws; sticks for balloons; balloons; packets and wrappers, beverage containers; bottles; tobacco product filters; wet wipes and sanitary towels; lightweight plastic carrier bags; and fishing gear.

The proposal defines plastic as “material consisting of a polymer [as defined in the EU REACH Regulation] to which additives or other substances may have been added, and which can function as a main structural component of final products, with the exception of natural polymers that have not been chemically modified.”  This definition is intended to cover polymer-based rubber items and bio-based and biodegradable plastics independently of whether they are derived from biomass and/or intended to biodegrade over time.

The proposal tries to encourage a circular economy by defining a “single use plastic product” as a product “made wholly or partly from plastic and that is not conceived, designed or placed on the market to accomplish, within its life span, multiple trips or rotations by being returned to the producer for refill or re-use for the same purpose for which it was conceived.”

Different Requirements and Bans for Different Categories of Products

The proposed Directive would impose different types of measures on different categories of single use plastic products.  The Commission claims that this differentiated approach takes into account whether there are alternative materials available, the added value of EU action, and its complementarity with the actions of the Member States.  In effect, the legal basis of the proposal (i.e., Article 192(1) of the Treaty on the Function of the European Union) does not prevent Member States from imposing additional or stricter requirements provided that they can be justified as necessary and proportionate.

The proposal would:

1. Ban the placing on the EU/EEA market of plastic cotton bud sticks, cutlery, plates, straws, beverage stirrers, and sticks to be attached or to support balloons.
2. Impose a 90% separate collection target for waste of plastic bottles, by means of deposit-refund schemes, or separate collection targets for relevant extended producer responsibility schemes.
3. Impose extended producer responsibility schemes for fishing gear containing plastic and plastic food containers, packets and wrappers of food intended for immediate consumption, beverage containers, cups for beverages, tobacco products with filers, wet wipes, balloons, and lightweight plastic carrier bags. Producers of single use plastic products would have to pay for the collection, transport and treatment of their waste as well as for the cost of clean up litter and of public awareness campaigns.  This extended producer responsibility would be in addition to the obligations that the EU Packaging and Packaging Waste Directive already imposes on producers of plastic packaging.
4. Ban the marketing of beverage containers with caps and lids that do not comply with specific environmental design requirements. In particular, the caps and lids would have to remain attached to the container during its intended use.  These design requirements would be further detailed through harmonized technical standards developed under an European Commission mandate.
5. Impose marking requirements on sanitary towels, tampons, tampon applicators, wet wipes and balloons. These products would have to bear a mark informing consumers of the product’s appropriate waste disposal options, the negative environmental impacts of littering or other inappropriate waste disposal, and/or the presence of plastics in the product.
6. Require Member States to take measures to reduce significantly the consumption of plastic food containers and cups. Those measures may include national consumption reduction targets, prohibiting the free supply of the products, or requiring the availability of reusable alternatives at point of sale.  A Directive on Reducing the Consumption of Lightweight Plastic Carriers Bagsimposes on Member States similar reduction consumption targets with respect to lightweight plastic carrier bags.
7. Require Member States to adopt environmental awareness raising measures for fishing gear containing plastic and plastic food containers, packets and wrappers, beverage containers, cups, tobacco products with filters, wet wipes, balloons, lightweight plastic carrier bags, and sanitary towels, tampons and tampon applicators. Member States would have to ensure that consumers are informed of the available re-use systems and waste management options for the products and the impact of littering and other inappropriate disposal.

The proposal also grants environmental NGOs a right of legal redress.  These NGOs may challenge in national courts decisions, actions or omissions of Member State authorities concerning the marketing ban, environmental design requirements, marking requirements and extended producer responsibility schemes mentioned above.  Individuals and other groups would also have a right of legal redress if they can show that they have a sufficient interest, or they maintain the impairment of a right where the relevant Member State requires this as a precondition.  This is probably the first time that an EU Directive imposing environmental requirements on products explicitly grants environmental NGOs a right to request compliance with the Directive’s requirements in national courts.

Next Steps

The European Parliament and Council must now consider the proposal for its adoption through the so-called “ordinary legislative procedure.”  Through that procedure the Parliament and Council may modify the proposal, including  to impose stricter requirements or to subject additional categories of plastic products to the proposal’s different requirements and bans.

Typically, the ordinary legislation procedure takes at least 16 months and may be extended to up to three years.  Nevertheless, the Parliament and Council may try to adopt the proposal before the EU parliamentary elections in May 2019.