EPPM asked Squire Patton Boggs’ European Public Policy Practice Specialist Ken Huestebeck how the EU’s SUP Directive will affect the industry and consumers.
What is the immediate effect of the so-called Single-use Plastics Directive (SUPD)?
In principle, the European Union’s SUPD rules only have direct legal effect where the EU Member States bring into force corresponding national rules. They had to do so by 3 July, but only eight of them have managed in time. However, eventually, the rules will apply across the single European market, including Norway and Northern Ireland.
Squire Patton Boggs
Quo vadis, single-use plastics?
Ken Huestebeck
Furthermore, the SUPD has intentionally sent signals that the use of plastics in certain kinds of products is undesirable ever since the European Commission proposed it in 2018, and the EU co-legislator agreed on it at the end of the same year. The EU institutions developed and agreed upon the SUPD in record time, with broad political alignment, but not the same attention to detail. This has contributed to some confusion among stakeholders.
How will the SUPD affect materials use?
The SUPD has at least three intended effects: less use of plastics in certain applications; increased costs if you use plastics in certain applications; and more use of recycled plastics in others. The SUPD includes a differentiated set of measures. Therefore, it is important for plastics producers and users to understand which rules apply to which products. Media coverage often focuses just on the banned products, but for some operators, these are just the tip of the iceberg.
The effects will also depend on how the SUPD is implemented. This process is far from complete. Not only have many Member States been slow in adopting the required national rules, the European Commission has also been late with multiple tasks to determine many relevant details. For example, Member States must take the necessary measures to achieve an ambitious, sustained and measurable quantitative reduction in the consumption of single-use plastic beverage cups and food containers. However, it is left to each Member State to choose the measures with which it wants to achieve the intended reduction. Some, Belgium, for instance, may go as far as banning all those products outright. The EU rule does not quantify how much reduction is ‘ambitious’, e.g. by providing a percentage. The Commission is still working on determining whether the reduction will be quantified by weight or the number of items, which can have repercussions for products that use only very small amounts of plastic.
As another example, Member States must ensure that PET single-use plastic beverage bottles contain on average 25% recycled content from 2025 and all single-use plastic beverage bottles 30% from 2030. These are the first recycled content targets set in EU law. As the Commission did not originally propose them, there has never been an impact assessment for them. In addition to voluntary commitments by leading beverage brands, they have already started some competition for the supply of suitable recycled plastic, starting with PET. In principle, the rule leaves it to each Member State to select the measures to achieve it. However, Germany has already turned, and France plans to turn, the target into a requirement, meaning that if you do not use the required share of recycled content, your products are effectively banned. Yet, Germany grants some flexibility to companies to average the share of recycled content across their relevant portfolio, unlike France. Furthermore, the Commission must adopt implementing rules on the calculation, verification and reporting of recycled content.
Even more fundamentally, for some products, it is still not clear whether they fall under the SUPD or not.
Was the Commission not supposed to provide guidance on that?
The Commission published the so-called SUPD scope guidelines at the end of May, after almost a year’s delay. They have certainly not made everybody happy, either by confirming the application of the SUPD to some materials and products against which parts of the industry have lobbied extensively or by still leaving some uncertainty. For example, the SUPD clearly means to include bio-based and biodegradable plastics in the fundamental definition of plastic, meaning that the SUPD addresses products with these kinds of plastic in the same way as conventional petroleum-based plastics. The broad definition excludes only natural polymers that have not been chemically modified. Manufacturers of certain polymer materials would have liked more clarity on this. The SUPD does not foresee a minimum threshold for plastic content, meaning that any small amount of plastic can make your product a plastic one, including paper/cardboard beverage cups with plastic lining or coating. Also, the line that the Commission has drawn between food containers within the scope of the SUPD and all other single-use plastic food packaging in the market, has remained blurred in some cases.
How will the EU continue to work with industry to create more circular materials?
Companies that are possibly affected should ensure that they fully understand and follow closely all the still ongoing processes to implement the SUPD, as indicated before. The Commission will have to review the SUPD itself by 2027. The Commission has worked with now 282 organisations in the Circular Plastics Alliance since late 2018. Furthermore, the European Commission is currently in the process of revising the EU packaging law (the Packaging and Packaging Waste Directive). Its broad goals are to prevent the generation of packaging waste in the first place, to ensure that all packaging is reusable or recyclable in an economically viable manner by 2030 and to increase the use of recycled content. These goals can conflict with each other. For example, the recyclability of certain packaging types might come at the expense of using more resources, reversing trends towards lightweighting. With the experience of the SUPD in mind, industry has expressed concerns that a hastened process might not sufficiently address such complex issues. The Commission recently presented tentative options to selected stakeholders. Given the likely significant impacts on packaging in general, all those producing, using or recovering packaging material and products should pay close attention to this process.
In what ways might the consumer benefit from the policy changes?
Vendors may exhaust their stocks of affected single-use plastic products, although the application of this in practice has also already caused some uncertainty. In particular after that, consumers will see marking as plastic products on some applications where it might surprise them because they have never realised those contained plastic, some wet wipes, for example. They will also experience the intended shift towards multi-use and/or non-plastic alternatives. However, some of these alternatives might inconvenience them, and increased costs will likely be passed on to consumers.
What penalties may be incurred for failure to comply?
Generally, Member States must enforce the EU rules and penalties must be effective, proportionate and dissuasive. So, it depends on the Member State, as well as the form of non-compliance. For example, Germany foresees an administrative penalty of up to €100,000 for the placing on the market of non-compliant single-use plastic products. However, penalties in some countries might even include revoking licenses to operate. Of course, all economic operators should ensure that they understand which rules they have to comply with and from when, the effects of non-compliance in and on their supply chain, as well as the risk of enforcement, as adapting usually takes time, and ignorance of the law is no excuse.