20th September 2023
“Packaging waste rules are changing. The first deadline for additional data reporting requirements is fast approaching, on 1 October 2023, but rules imposing increased Extended Producer Responsibility fees are being deferred to 2025. In this article, we explain what producers need to know.”
The UK government announced, on 25 July 2023, the deferral of the roll-out of the Extended Producer Responsibility regime (EPR) for packaging. This regime will seek to pass on to producers the full net cost of collection and end-of-life treatment for the household packaging waste they place on the market. The additional costs imposed by the EPR will now come into force in October 2025. The government is currently consulting on the draft regulations which will bring this change into force. The consultation closes on 9 October 2023 and can be accessed here.
In the meantime, the Packaging Waste (Data Reporting) (England) Regulations 2023 (the Data Reporting Regulations) have been brought into force. They impose additional reporting obligations on producers caught by the existing regime. The Data Reporting Regulations apply to organisations with an annual turnover of more than £1 million and who handle more than 25 tonnes of packaging per year. Producers must be aware of the changes, as the first deadline, for “large organisations”, is 1 October 2023.
The Data Reporting Regulations apply to UK organisations with an annual turnover of £1 million who handle and supply more than 25 tonnes of packaging to consumers per year. Producers falling within scope but whose annual turnover is less than £2 million, or who don’t handle more than 50 tonnes of packaging each year, will be considered “small producers”. Those who exceed the higher threshold will be “large producers”. The thresholds for a “small producer” are new, and lower than previously. Businesses should consider afresh whether the Data Reporting Regulations now apply to them.
Whilst small producers must collect data, they will not be required to report on this data until 1 April 2024.
The first packaging waste data reporting deadline for “large organisations” is 1 October 2023.
It’s worth noting that brand owners and online marketplace operators, who under the previous regulations were outside the scope of the packaging waste regime, could now be considered “producers” and be subject to the Data Reporting Regulations. This relates to packaging sold on the UK market through a platform or website, by businesses based outside the UK. Such businesses should consider whether they are now within scope of the packaging regime and exceed the small or large producer thresholds.
The new regime requires producers to:
The data reported by producers will be used to calculate the waste management fee payable by the businesses. In the future, the fee will vary depending on how easily the packaging can be recycled.
The Data Reporting Regulations also requires large producers to increase the frequency of reporting from once to twice a year. For the period of 1 January 2023 until 30 June 2023, producers will need to report data between July 2023 and 1 October 2023. There is an exception to this deadline if the required data was not available on 1 January. If the data was not available, then the reporting requirement started on 1 March 2023. For the six month period ending 31 December 2023, producers will need to report between 1 January 2024 and 1 April 2024.
Small producers will need to report data on an annual basis from 1 January 2024, with a deadline of 1 April 2024.
Producers must maintain data for at least seven years after the end of the data collection period to which it relates. Large producers must also retain, for seven years, evidence of the amount of packaging waste which they’ve collected and sent for recycling, and evidence that any relevant packaging waste has been recycled.
Producers which come within the scope of the Data Reporting Regulations will need to collect data in time to meet the reporting deadlines. Producers (in particular, small producers coming within scope for the first time) will need to familiarise themselves with the data they must report on, and to establish systems and procedures for that data collection. Contravention of the Data Reporting Regulations could constitute an offence and give rise to a penalty.
Businesses should be mindful of the fees that will be coming into force in October 2025. We don’t yet know the scale of those fees, but it’s very likely that businesses using harder to recycle or unrecyclable packaging will incur higher costs. A review of packaging recyclability would therefore be prudent.
Walker Morris’ specialist Environment and Regulatory lawyers are experienced in advising businesses on all aspects of their environmental regulatory obligations. As well as keeping you up to date with legal and regulatory developments, we can provide tailored legal and strategic advice to help ensure your business’ compliance with new packaging waste and data reporting requirements. If you require further information, advice, training or assistance, please contact Josh Kitson or Rachel Turnbull, who will be very happy to help.