Packaging protected from national bans by circular economy agreement

National bans on certain types of packaging will now be harder to come by after the agreement on circular economy legislation reached on Monday confirmed that packaging has retained its Internal Market legal base.

While not one of the headline measures of the legislative negotiations that have taken up much of this year, the packaging industry has been campaigning to keep the Packaging and Packaging Waste Directive (PPWD), one of those being amended by the Circular Economy Package, an Internal Market issue rather than changing it to an environmental protection, as proposed by member states through the European Council.

By changing packaging to an environmental concern, member states would have been able to take unilateral action to ban certain packaging products without EU oversight, which the packaging industry said would limit the ability to import and export packaged goods across the EU, impacting consumers in terms of price and product choice. The move by the European Council was believed to be led by France and Italy, two nations that has already taken steps to ban certain types of packaging.

An example of this comes in the French government’s attempts last year to ban disposable plastic plates, cutlery and cups. The ban was passed in August 2016 saying that by 2020, 50 per cent of the material used to create plastic disposable items like tumblers, coffee cups, plates and cutlery would have to be bio-based and that consumers would have to be able to dispose of them in household compost units.

Though it was a move welcomed by environmental groups, European convenience food packaging organisation Pack2Go appealed the ban to the European Commission, saying that it violated EU rules on the free movement of goods. Investigation into this case is ongoing.

Although, like other measures agreed upon during Sunday’s final trilogue, it has yet to be officially confirmed by any of the European institutions, it is believed that the legal base has been retained.

Under these terms bans must be agreed by the European Commission to ensure they do not infringe on EU rules, though taxes, such as those on single-use plastics proposed by Chancellor Philip Hammond in his Autumn Budget, can be imposed by national governments due to fiscal autonomy for member states.

While the impact of plastic waste, much of which comes from packaging, is getting more public attention than ever, with the BBC’s flagship Blue Planet II documentary the latest of a string of media outlets to highlight waste’s impact on the natural environment, it is important to remember that packaging plays an important role in protecting goods often travelling large distances, maintaining and extending the lives of other products.

The industry insists that this means that decisions on packaging for solely environmental reasons risk impacting the free movement of consumer goods.

Speaking to Resource, Paul Vanston, Chief Executive of the Industry Council for Packaging & the Environment (INCPEN), said: “Whether the UK stays in or leaves the European Union, it is important for UK businesses that products and packaging made here can be traded on a standard basis across the EU.  

“Losing the internal market basis to the Packaging Directive risked each member state specifying their own packaging criteria, which could have led to UK businesses needing to package the same product up to 27 different ways in the worst case scenario. Retaining the ‘internal market’ basis means we stay as we are. Of course, whether the UK chooses to continue harmonisation with EU regulations after Brexit is a different matter.”

In October, 129 national and European associations, including UK bodies the British Plastics Federation, the British Retail Consortium, the Confederation of European Paper Industries and INCPEN, joined to call for the internal market for packaging to be protected, calling it ‘one of the most important issues industry has collectively faced within the context of packaging since the PPWD was enacted in 1994’.

The European Parliament included a defence of the single market for packaging and packaged goods in its mandate for Circular Economy Package negotiations in March, a position that was backed by the Commission, but the status looked to be on shaky ground when opposed by the European Council.

However, the legal status has now provisionally been agreed, with final ratification due in early 2018, when the European Council and Parliament will individually confirm their support for the legislative package.