No time to waste III - Parliament and Council reached provisional agreement on PPWR

Background

With the draft of a new Europe-wide binding Packaging and Packaging Waste Regulation (PPWR), the Commission has launched a new project as part of the European Green Deal by the end of 2022. The PPWR will replace the Packaging and Packaging Waste Directive 94/62/EC, which was adopted in 1994 and has been amended several times since. With this initiative, the Commission aims to tackle the growing volume of packaging more effectively and to improve the circular economy with regard to packaging. At the end of 2023, the Parliament and the Council each agreed on amendments that formed the respective negotiating mandates for the subsequent negotiations between the institutions in the so-called trilogue. Under the Belgian Presidency, the Parliament and the Council agreed on a joint text for the PPWR in mid-March 2024. However, it remains to be seen to what extent the new obligations can be realistically implemented by industry.

Summary of main agreed amendments

In the following we would like to give you an overview of the most significant changes agreed by Council and Parliament compared to the draft initially proposed by the Commission. For more details please refer to our previous articles on the initial draft of the Commission as well as the negotiating mandates of the Parliament and the Council.

Restriction of certain materials in packaging

Based on the amendments proposed by the Parliament, both institutions agreed on additional specific maximum levels for per- and polyfluorinated alkyl substances (PFAS) in food contact packaging (Article 5(2)). While the Commission had argued against such limits for PFAS, as this class of substances is to be further regulated under the forthcoming chemicals legislation, the Parliament and the Council agreed to include such limits and instead asked the Commission to assess at a later stage whether there are overlaps with other legislation that would require changes to these PFAS limits.

Recyclability of Packaging

In the agreed text of the PPWR, Parliament and Council made clear that the designed-for-recycling requirement is only met if the packaging is designed for material recycling. Material recycling requires that the waste materials are reprocessed into materials or substances that can be used for the original or other purposes. However, energetical recycling or reprocessing into materials to be used as fuels or for backfilling operations shall not be considered as material recycling (Art. 3 (32a)). Furthermore, the designed-for-recycling criteria will only be considered fulfilled if the resulting secondary raw materials are of sufficient quality when compared to the original material to substitute primary raw materials.

Overall, based on the amendments proposed by the Council packaging recyclability will be expressed in grades A, B and C where packaging with a recyclability below 70% will no longer be considered recyclable from 1 January 2030 or 24 months after the entry into force of the delegated act that establishes specific design-for-recycling criteria and the different performance grades. By 1 January 2038 only packaging that is recyclable within performance grades A or B shall be placed on the market meaning that packaging will then have to be at least 80% recyclable.

Furthermore, the Parliament and the Council required the Commission to factor in the packaging functionality that parameters such as additives, labels, ease of dismantling and colours, provide to the packaging when establishing the designed-for-recycling criteria. It shall also be considered whether the evolution of sorting and recycling technologies enables packaging to be sorted in the near future.

Parliament and Council also included several further exemptions from the obligation of packaging to be recyclable. For instance, contact sensitive packaging for several baby and child food and for food for special medical purposes, sales packaging made from lightweight wood, cork, textile, rubber, ceramic, porcelain or wax will not have to be recyclable. These exemptions shall be reassessed by the Commission by 1 January 2035 taking into account the evolution of sorting and recycling technologies and practical experience gained by economic operators and Member States.

However, as regards the recyclability criteria uncertainties still remain given that details regarding the design-for-recycling criteria as well as the recyclable-at-scale criteria and the establishment of the different performance grades will be further laid down in delegated acts to be adopted by the Commission after the entry into force of the PPWR.

Recycled content requirements

With respect to minimum recycled content in plastic packaging Parliament and Council made only few amendments to the thresholds initially proposed by the Commission. According to the agreed text the minimum recycled content in contact sensitive packaging made from plastic materials other than PET by 1 January 2040 has been reduced to 25% instead of 50%.

The text agreed by Parliament and Council contains some significant changes apart from the minimum recycled content thresholds. According to the now agreed text, recycled content may also be recovered from post-consumer plastic waste that has been collected and/or recycled in a third country provided that applicable European standards are also met in the relevant third country. Accordingly, the procurement market for recyclates required to fulfil the new obligations will be significantly expanded. This provision is highly controversial and has raised many concerns within Commission and Member States and third countries

Parliament and Council also implemented additional exemptions from the minimum recycled content requirements. Compostable plastic packaging and contact sensitive plastic packaging for food intended for infants and young children, food for special medical purposes and packaging for drinks and food typically used for young children shall now also be exempted. Recycled content targets shall also not apply to plastic parts representing less than 5% of the total weight of the whole packaging unit. Noteworthy is also the exemption for plastic packaging intended to come into contact with food in case the amount of recycled content poses a threat to human health and results in non-compliance of packaged products with the Regulation on materials and articles intended to come into contact with food (Regulation (EU) 1935/2004).

Prior to the applicability of the minimum recycled content requirements the Commission shall assess the need for further derogations from the minimum recycled content requirements and shall adopt delegating acts providing for additional derogations or for derogations from the scope, timing or level of minimum percentage if suitable recycling technologies are not available because they are either not authorised or are not sufficiently installed in practice. This new amendment of the text proposed by the Commission shall help to adapt the ambitious goals regarding the use of recycled content to the actual market conditions.

With respect to the substitution of recyclates with bio-based plastic feedstock as initially suggested by the Parliament this will only be possible based on a future legislative proposal to be presented by the Commission and only if suitable recycling technologies for food contact packaging complying with the requirements laid down in Regulation (EU) 2022/1616 on recycled plastic materials and articles intended to come into contact with foods are not available (Art. 7a).

Minimization of Packaging

With respect to packaging minimization Parliament and Council agreed on giving economic operators more time to implement this requirement. The requirement to design packaging in such a way that its weight and volume is reduced to the minimum necessary for ensuring its functionality shall apply from 1 January 2030 only.

Additionally, if the packaging design is protected by design rights or trademarks, such packaging does not have to comply with the performance criteria set out in Annex IV and the prohibition of characteristics aimed only at increasing the perceived volume of the product (e.g. double walls, double bottoms, unnecessary layers) if the design rights and trademarks are already protected by the time the PPWR enters into force and only if the application of the performance criteria and the above prohibition would impair those rights or trademarks.

The text of the Parliament and Council also aims at further specification and harmonization of the packaging minimization requirements. Therefore, the European Commission shall be obliged to request the European standardisation organisations 24 months from the entry into force of the PPWR to provide harmonised standards on the calculation and measurement of compliance with the packaging minimization obligation. For most common packaging types and formats maximum adequate weights and volume limits as well as, if appropriate, wall thickness and maximum empty space shall be standardized as well.

As regards e-commerce packaging, the Council has also prevailed with its proposal to increase the maximum permissible empty space ratio to 50%. The Parliament, correspondingly, was not able to assert itself with its proposal not to prescribe a fixed limit value. This obligation shall apply from 1 January 2030, or 36 months after the entry into force of delegated acts to be adopted by the Commission establishing the methodology for the calculation of the empty space ratio. However, reusable packaging shall not be subject to maximum empty space ratio it being noted that general requirements to reduce packaging must also be complied with by reusable packaging.

Labelling requirements

With regard to the various labelling requirements to be introduced with the PPWR, the Parliament has prevailed with its proposal that packaging manufactured or imported before the entry into force of the various labelling requirements under Art. 11 may be placed on the market during a transitional period of 36 months after the entry into force of the various labelling requirements. This interim period prevents that packaging manufactured or imported prior to the applicability of the labelling requirements must be relabelled or destroyed. However, it may still be recommendable to implement the new requirements as soon as possible to avoid additional costs.

With respect to labelling requirements, the Parliament and Council also introduced an obligation to provide end-users with information on material composition, reusability and the share of recycled content before the purchase of the product in online sales (Art. 11 (4)).

Environmental claims

Given that packaging increasingly contains claims on its recyclability or recycled content, and in the light of the prohibition of claims presenting mandatory legal requirements as a distinctive feature recently introduced into the UCP amendment directive (for further details please see our recent article on the UCP amendment directive) Art. 12b newly introduced by Parliament and Council is particularly relevant. According to this new article, claims relating to packaging properties for which legal requirements are set out in the PPWR shall only be allowed if they are made in relation to packaging properties exceeding the applicable minimum requirements set out in the PPWR and if they specify whether they relate to the packaging unit, part of the packaging unit or to all packaging placed on the market by the producer.

Reuse targets

The requirements for packaging to be reusable laid down in Art. 10 (1) remained more or less the same as initially proposed by the Commission. Council and Parliament mainly introduced as a new requirement that reusable packaging must also fulfil the requirements regarding consumer health, safety and hygiene. The Council’s proposal to include a minimum number of rotations a packaging must be able to accomplish in order to be considered reusable, however, has not been adopted. Instead the Commission is asked to adopt delegated acts 24 months after the entry into force of the PPWR setting a minimum number for the rotations for reusable packaging for the packaging formats most frequently used in reuse and that also take into account hygiene and other requirements.

Re-use targets as initially proposed by the Commission shall also be introduced; however, they faced several amendments as agreed between Council and Parliament. For instance, the following re-use targets will apply from 1 January 2030:

• Transport packaging or sales packaging in the form of pallets, foldable-plastic boxes, boxes, trays, plastic crates, intermediate bulk containers, pails, drums and canisters, pallet wrappings, straps for stabilization and protection of products put on pallets during transport shall be 100% reusable if it is used for the transport to another economic operator within the same Member State or for the transport between different sites of the economic operator or one of its linked or partner enterprises within the European Union. For the rest, such transport packaging and sales packaging shall be at least 40% reusable. With respect to pallet wrappings and straps for stabilization and protection of products put on pallets as well as transport packaging used in e-commerce this is an increase compared to the targets initially proposed by the Commission. From 1 January 2040 economic operators shall endeavour to use at least 70% of such packaging in a reusable format.

It should further be noted that several packaging will be exempted from this obligation. For instance, packaging in the form of cardboard boxes shall be generally excluded from this obligation as well as transport packaging or sales packaging used for transportation for large-scale machinery, for equipment and commodities for which packaging are customed-designed to fit the individual requirement of the ordering economic operator.

• Final distributors making available alcoholic and non-alcoholic beverages in sales packaging shall ensure that at least 10% of those products are made available in reusable packaging. This obligation will regularly apply to retail as they are regularly the last player in the supply chain that delivers such products to the end user. Accordingly retailers will have to ensure a corresponding ratio of beverages packaged in reusable packaging in their beverages range. Final distributors will also be obliged to take back, free of charge, all reusable packaging that is equal to the packaging made available on the market by them. However, several beverages shall be exempted from these obligations, such as highly perishable beverages, several wine products and alcohol-based spirituous beverages.

Member States that over-fulfil their recycling targets and fulfil their waste prevention target may exempt economic operators from the above reusability obligations for a period of five years if the economic operator has adopted a corporate waste prevention and recycling plan that contributes to achieving the waste prevention and recycling objectives of the member state (Art. 26 (15b)).

Other than initially proposed by the Commission, no re-use targets have been agreed for take-away packaging in the HORECA sector. Instead final distributors in the HORECA sector shall be obliged to offer consumers the option of take-away packaging within a system for re-use with respect to beverages and ready-prepared food (Art. 28b) and to provide consumers with the option to bring their own container to be filled (Art. 28a). Member States may, however, set forth more ambitious targets (under conditions – see art. 28b(6)).

List of banned Single-Use Packaging

The ban on various types of single-use packaging has essentially been retained (Art. 22, Annex V). For instance, single use plastic packaging for foods and beverages filled and consumed within the premises in the HORECA sector, single use plastic packaging in the HORECA sector containing individual portions or servings, such as packaging used for sugar and seasoning or for ketchup and mayonnaise, and very lightweight plastic carrier bags.   Single use plastic packaging for less than 1.5 kg unprocessed fresh fruit and vegetables will be  prohibited unless Member States chose to adopt exemptions based on food safety and food quality considerations. .

Seven years after the entry into force of the PPWR the Commission shall assess the positive environmental impact of the restrictions and their derogations and where necessary present a legislative proposal to amend the restrictions and exemptions to adapt it to technical and scientific progress with the objective to reducing packaging waste.

Packaging Forum

The initiative of the Parliament to implement an expert group consisting of Member States and all parties concerned with packaging, such as manufacturers, distributors, waste treatment industry, environmental protection groups has not been successful. Instead such an expert group is merely mentioned in the recitals (Rec. 78) without further laying down any details of such expert group. According to the recital the Commission shall merely take into account the views of relevant bodies and the expert group and consult with all relevant stakeholders when preparing the implementing acts. It remains to be seen what such involvement will look like in practice.

Extended obligations for fulfilment service providers and online marketplaces

Compared to the initial draft of the Commission, the agreed amendments of the Parliament and the Council extended the obligations for fulfilment service providers and online marketplaces. Producers will be obliged to provide fulfilment service providers and online marketplaces with information regarding their registration in the register of producers and the fulfilment of the requirements under the extended producer responsibility (Art. 18 (1), 40 (3)). Both fulfilment service providers and online marketplaces shall then be required to make best efforts to assess whether the received information are complete and reliable (Art. 18 (1b), 40 (3a)).

Deposit and return systems

Member States will be required to ensure that deposit return schemes that include the charging of a deposit at the point of sale are set up by 1 January 2029 for all single use plastic beverage bottles and single use metal beverage containers with a capacity of up to three litres (Art. 44). By doing so Member States shall ensure the separate collection of at least 90% per annum of single-use plastic bottles and metal beverage containers. Parliament and Council agreed to introduce an obligation of the Commission to assess the implementation of this obligation and to identify how to maximise the interoperability of the deposit and return systems by 1 January 2038. In the long term, this obligation could therefore contribute to a Europe-wide deposit system.

Sanctions

The Parliament and the Council have not agreed on significant further details regarding possible sanctions in the event of breaches of the PPWR. Accordingly, sanctions for infringements of the PPWR will mainly be at the discretion of the individual Member States (Art. 62). In the case of breaches of individual obligations, such as the reuse targets, the ban on single-use packaging or the maximum empty space ratio, it is explicitly stipulated that the penalties should also include administrative fines.

Next steps

The Council and the Parliament now need to officially approve the provisional. As some member states had expressed concerns in the forefront of the trilogue, an official approval therefore remains to be seen. The text needs to be formally adopted by both institutions before it can be published in the Official Journal of the EU and enter into force. The new rules of the PPWR shall then be applicable 18 months from its entry into force, which is on the twentieth day following the day of the publication in the Official Journal. Economic operators are therefore highly recommended to start familiarizing with the  anticipated new packaging requirements. We would be happy to support you in better understanding the upcoming obligations and finding practical solutions for their implementation.

Authored by Dr. Christiane Alpers, Jacqueline Mailly and Dr. Hanns-Thilo von Spankeren.