Unpacking Germany´s recently published key issues paper on a law for less packaging waste and more multi use

Background

The motivation behind the envisaged law is the clear failure to meet the targets that the German government set itself when introducing the Packaging Act 2019. According to Section 1 (3) VerpackG, the German government aimed to achieve a market share of 70% for beverages filled in reusable beverage containers compared to single-use beverage containers. According to the latest BMUV figures, the share for 2020 was at 43.1 %.

According to its key issues paper, the BMUV wants to take action against superfluous single-use packaging, which in the BMUV's view is a problem particularly in the food industry. This is why the obligation of restaurants and food service providers to offer a reusable alternatives to single-use plastic packaging (Section 33 VerpackG), which was introduced at the beginning of 2023 due to Article 4 of the Single-Use Plastic Directive (EU) 2019/904, shall be expanded. 

In justifying the focus on reusable alternatives, the BMUV argues that the environmental footprint of reusable packaging is significantly better than that of single-use packaging due to repeated circulation prior to the necessary recycling. The material loss inherent in each recycling cycle thus only comes to bear after several uses, so that the amount of new materials, namely plastic, introduced into the circular economy would shrink as a result.

Overview

The published key issue paper includes the following cornerstones:

• Obligation for supermarkets and discounters to offer at least one product in multi-use packaging for certain beverage groups
• Expansion of the deposit system whereby multi-use beverage packaging must be accepted in all stores subject to the mandatory deposit system
• Expansion of mandatory reusable packaging alternatives in to-go food services
• Reduction of single-use packaging for on-site consumption
• Prohibition of reduced filling quantity with unchanged packaging

Details

Multi-use packaging for beverages

Supermarkets and discounters with a sales area of more than 200 m² shall be obliged to offer at least one product in multi-use bottles for certain types of beverages. The segments concerned are water, beer, soft drinks, juice and milk. This regulation ties in with the idea behind Article 26 of the Commission's proposed Regulation 2022/0396 (COD) on Packaging and Packaging Waste, which sets mandatory quotas for reusable packaging for end distributors for the years 2030 and 2040. This is intended to give consumers the opportunity to always find a multi-use bottle when shopping. The discounters primarily affected by this should therefore review their product range and will be obliged to diversify if necessary.

Expansion of the deposit system

The German deposit system, which is largely regulated for single-use beverage packaging in Section 31 of the German Packaging Act (VerpackG), shall also be extended to more specific rules for multi-use packaging. With the proposed changes in the German Packaging Act, stores with a sales area of more than 200 m² shall be obliged to take back all multi--use bottles and crates in the future. Previously, stores were only obliged to take back multi-use packaging that they sold themselves, as the multi-use bottle deposit system was scarcely regulated by law, but was built on the pillars of manufacturers' agreements. This change would pose a challenge not only to the affected stores, but also to the clearinghouses to create uniform solutions.

Mandatory multi-use packaging alternatives in to-go food services

The obligation to offer multi-use alternatives instead of single-use plastic packaging at to-go food services (Section 33 VerpackG), which only came into force at the beginning of 2023, shall be extended. In future, the obligation to offer reusable containers shall apply irrespective of the type of material of the packaging offered, not only to single-use plastic packaging. This is intended to counteract evasive movements by suppliers who have switched to other materials (aluminum, cardboard) after J1 January 2023, so that as a result they were not affected by the obligation to offer reusable alternatives. Should this change actually come into force, companies offering to-go service would be forced to offer reusable alternatives.

The existing exception in Section 34 VerpackG, for stores with no more than five employees and a sales area of no more than 80 m²shall be kept. These stores can fulfill their obligation by not offering reusable containers themselves, but by filling reusable containers brought in by customers.

In addition, the FAQ on the key issues paper clarify that this obligation should not only apply to to-go sales stands, but also to orders placed via delivery services. As a result, affected food service providers will only be allowed to offer delivery services that have integrated the option for customers to choose a multi-use container. This covers both the delivery of food in multi-use containers as well as the possibility to return these containers at the place of delivery (likely the customers home) or in its immediate vicinity.

Reduction of single-use packaging for on-site consumption

For on-site consumption, the new law would introduce a general ban on single-use packaging. This is intended to counteract the development of food being served in single-use packaging even when consumed directly in the restaurant, with the packaging remaining in the restaurant - as waste. Reusable alternatives will thus become mandatory on site.

Exceptions will be made for necessary secondary packaging, such as paper bags for French fries in paper bags or wrappers for sandwiches or wraps. Especially in stores with both to-go and on-site consumption, this has the potential to complicate many processes, as the food could in many cases not be uniformly packaged, and acquisition costs for reusable alternatives would be incurred by the companies.

Prohibition reduced filling quantity with unchanged packaging

The key issues paper also states that a reduction in filling quantity should always be accompanied by a reduction in packaging size. This rule is not only intended to reduce packaging material but also to prohibit this form of misleading packaging and to avoid deceiving the customers. However, the paper is very vague on this point, so more detailed information will only be available once the draft legislation has been published.

Enforcement

The new and more uniform regulations also seek to improve enforcement by local authorities. Violations will be punishable by up to €10,000 under the German Packaging Act.

Further efforts

The key issues paper includes hints that the BMUV is planning another law on the subject of packaging and packaging waste. However, this likely will not come until the EU Packaging and Packaging Waste Regulation has been finalized.

Companies that offer single-use packaging should also be prepared for stricter regulations at the municipal level in the near future: In May the Federal Administrative Court ruled that German municipalities are authorized to levy a municipal packaging tax on single-use cups and single-use food packaging (Ref.: BVerwG ruling dated May 24, 2023 - 9 CN 1.22, press release). Currently, around 80 municipalities are said to be examining the introduction of such a tax, including in particular large metropolitan areas.

Next steps

Following publication of the key issues paper, not only representatives of the industries concerned but also the Liberal Party, which is part of the government, voiced criticism on the scope of the law and the strong focus on reusable containers. Without changes to the draft law, it is unlikely to make it to the next steps in the legislative process. Therefore, it remains to be seen what compromises the three governing parties will agree on and how this will be reflected in a draft law.

Nevertheless, companies are well advised to monitor the further developments of this proposed law and to start initial assessments on where adjustments may be required in their business.

Authored by Christiane Alpers, Lasse Heber, and Felix Steltenkamp.