In this edition DWF Global Head of Consumer Sector, Dominic Watkins, and colleagues Georgia Taylor and Columba Cordingley reflect on Single-Use Plastics in England & Beyond
As the mornings are turning colder, and the summer now seems to have departed, the pace of regulatory and/or policy change shows no signs of slowing. As we covered last month, there are so many significant proposals working their way through either the EU or UK legislative process that it can dizzying to keep up, particularly as many measures that are due to come into force are being pushed back to 2025.
This month has seen significant changes on the government’s net zero policies and confusion about the position on recycling, including the somewhat odd suggestion that the need for seven bins has been averted. Although, EU plans around EPR for clothing may mandate further measures in the EU in due course. This sits in parallel with the news that that the food waste reporting will not be mandatory.
Yet, one significant step forward occurred in the EU as its revisions to the Unfair Commercial Practices Directive to outlaw various environmental claims came one step closer to being law. It now just has to navigate through the Council and then be implemented – next month we will explore green claims in more depth.
While deposit return schemes (DRS) and various other measure are delayed, this month we will focus on the position for one change coming into force: the single-use plastics.
From 1st October 2023 the Environmental Protection (Plastic Plates, etc. and Polystyrene Containers etc.; England) Regulations 2023 come into force. From this date, supplying or offering to supply certain plastic or polystyrene items in the course of business will be prohibited, whether online or in-store. The ban applies to single-use plastic plates, bowls and trays, cutlery and balloon sticks. Single-use polystyrene food and drink containers will also be banned.
Businesses should consider the following key points in preparation for the October ban:
- The ban applies to single-use plastic plates, bowls, trays and cutlery. Whether an item falls within scope will depend on whether it is designed or intended to be used as one of these items. As such, this could extend to a wide range of containers, regardless of how they are described. Single-use polystyrene food or drink containers used for food or drink ready to be consumed without further preparation will also be prohibited.
- The ban applies to the single-use plastic/polystyrene items in scope, which means the item is meant to be used only once for its original purpose. No exemptions are given for different types of plastic material, so restricted items made from bio-based, biodegradable and compostable plastic are all subject to the ban. ‘Plastic’ and ‘polystyrene’ means made wholly or partly from plastic, or expanded or foamed extruded polystyrene, respectively.
- Single-use plastic cutlery and balloon sticks will be prohibited without any exemptions, whilst single-use plastic plates, trays and bowls and food or drink in polystyrene containers will be prohibited with some exceptions (see below).
Out of Scope
- The prohibition does not apply to single-use plastic plates, bowls and trays which are sold shelf-ready and pre-packed at the point of sale (i.e. bowls or platters of frozen meals), nor does it apply to single-use plastic items which are packaged (pre-filled or filled at the point of sale) to takeaway (i.e. pre-filled salad bowl at supermarkets; plates filled at a takeaway; trays used to deliver food etc.).
- Single-use polystyrene containers and cups containing food and drink, which is unprepared for final consumption, are also excluded (i.e. polystyrene cup with dried soup ingredients, which require hot water to be added by the consumer before consumption).
- The ban will apply to the supply by businesses to final consumers only and so, the restricted items will not be prohibited from being supplied to businesses throughout the supply chain. Either by supplying single-use plastic/polystyrene items themselves for use by businesses to supply to final consumers in accordance with the exemptions, or by providing them to store or transport unprocessed or unprepared food and drink.
The Regulations only apply to England and, with the exception of trays and bowls, the restricted items are exempt from the market access principles in the United Kingdom Internal Market Act 2020 (UKIMA). This is as a result of the rest of the UK having devolved legislation on single-use plastics which, although similar in principle, does diverge in application.
Scotland’s restrictions are provided in the Environmental Protection (Single-use Plastic Products; Scotland) Regulations 2021, which came into force in June 2022. It doesn’t include trays and bowls but includes a ban on the manufacturing and the supply of single-use plastic cutlery, plates, expanded polystyrene beverage cups and containers, as well as beverage stirrers and the supply only (not the manufacture) of plastic straws and balloon sticks, with some exceptions. It includes sales and also items given as donations or gifts. Unlike England, there is no exemptions for single-use plastic items which are pre-packed or packaged (pre-filled or filled at the point of sale).
In Wales, The Environmental Protection (Single-use Plastic Products; Wales) Act 2023 imposes restrictions including those relating to the supply of single-use balloon sticks, plates, cutlery and cups and containers made of expanded or foamed extruded polystyrene, among other items. These items will also be banned from 1st October 2023 and other items will be banned from 2024 onwards, including single-use plastic bags and oxy-degradable plastic products. Like Scotland, there is no restriction on trays and bowls. However, like England, the restrictions apply to the supply only and not the manufacture, of the restricted items. The restrictions apply to commercial businesses but also government bodies, sole traders, public service providers and charities. Unlike England, there is no exemptions for single-use plastic items which are pre-packed or packaged (pre-filled or filled at the point of sale).
Under the Northern Ireland Protocol, Northern Ireland (NI) partially follows the EU Single-use Plastics Directive which prohibits certain single-use plastics from being placed on the market. This includes single-use plastic cutlery and plates, and beverage cups and food containers made of expanded polystyrene, which have all been banned across the EU and in NI since July 2021. There is no exemptions for single-use plastic items which are pre-packed or packaged (pre-filled or filled at the point of sale).
The EU Directive insofar, as it applies to NI, also introduced restrictions on certain single-use plastic products (i.e. from July 2024 beverage containers will not be permitted under the lid/cap is tethered) and further restrictions on the composition of PET beverage bottles are due to come into force in 2025 and 2023. The Directive requires Member States and NI to take consumption reduction measures in respect of the single-use plastic items in scope. NI was given an extended transition date to implement these provisions by 1 January 2022, which has not been met – the Northern Ireland Minister of Agriculture, Environment and Rural Affairs has argued that the UK Government is obligated to implement these restrictions, but to date there have been no proposals.
Again, there is divergence between the EU/NI and England in terms of items in scope (single-use plastic bowls and trays are not included in the EU/NI rules) as well as in the offence the Regulations create in relation to the restricted or prohibited items. Unlike Scotland, where the offence is to manufacture or supply, or England and Wales where the offence is to supply, the EU/NI offence is placing on the market (of the specific Member State or Northern Ireland).
Interaction with UKIMA
Whilst the rest of the UK (and the EU) diverge from England’s restrictions in terms of products in scope, as they do not include bowls and trays, these items will be prohibited in all UK nations by virtue of being excluded from The United Kingdom Internal Market Act 2020 (Exclusions from Market Access Principles: Single-Use Plastics) Regulations 2022, which amends UKIMA to exclude the sale of other restricted single-use plastic items from being subject to the UK market access principles. The result of this (narrow) exclusion is that those specifically excluded single-use plastics items, and only those, will be subject to the restrictions as they apply in each of the devolved nations.
Other discrepancies between the UK nations, such as exemptions; whom the restrictions apply to; and enforcement, will also be key points for businesses to consider. This space is evolving as further legislation develops, e.g. the UK Government defended the exemption of single-use plastic items in scope when prepacked or packed, on the basis that they would be covered by a proposed extended producer responsibility scheme. Although, it should be noted that the scheme would involve producers paying disposal fees and so, would not amount to a ban as is the case in the other UK nations. Therefore, a UK-wide approach to the single-use plastic rules will require cross-nation consideration.
For further insights, please also visit DWF’s Consumer Sustainability in Focus hub here, and if you have any questions about points raised above or how this may affect your business please get in touch with DWF Dominic Watkins.