As part of efforts to progressively prevent overuse of plastic packaging and reduce its adverse environmental impacts, in particular within the framework of the European Union’s common policy, new rules and thresholds for the use of certain single-use plastic packaging and packaging devices are gradually being introduced, among other things.
Amendments to legislation
At the beginning of October, an amendment to Act No. 477/2001 Coll., on Packaging, as amended (hereinafter as the “Packaging Act“), came into force. The newly introduced changes are based on Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment (hereinafter as the “SUP Directive“).
On the basis of the SUP Directive, new legal obligations for persons placing certain single-use plastic packaging on the market have been transposed into Czech legislation, inter alia, in the area of the introduction of charges for their cleaning and the method of registration.
The Packaging Act, as a national regulation, implements the obligation under EU law to contribute financially to the costs associated with the cleaning and disposal of unwanted single-use plastic packaging, which does not yet have more environmentally friendly and sustainable alternatives.
In the following article we would like to give you a closer look at the specific aspects of these specific littering obligations, particularly in the food sector.
Generally
The legal basis for the introduction of the littering obligations is the newly incorporated provision of Section 10a of the Packaging Act, under which a person placing disposable plastic packaging specified in Part C or D of Annex 4 to the Packaging Act on the market or in circulation will be obliged to reimburse municipalities for the costs incurred for cleaning up waste disposed of by persons outside the places designated for its disposal and for the subsequent transport and processing of this waste. These are so-called littering costs, which are paid by these entities through an authorised packaging company established pursuant to Section 16 an. Packaging Act (hereinafter also as the “APC“).
APC means a joint stock company authorised by the Ministry of the Environment, which is entitled to ensure the joint fulfilment of the obligation to take back and recover packaging waste under the Packaging Act and to conclude contracts on joint fulfilment with obliged persons for this purpose.
The amount of the littering costs will have to reflect the real costs of cleaning up the waste.
Scope of the obligation
Relevant definitions and specific examples are provided not only by the SUP Directive and the transposing Packaging Act, but also by the Commission Notice No. 2021/C 216/01 of 7 June 2021, which follows the SUP Directive and reflects the Commission’s Guidelines on single-use plastic products under the SUP Directive (hereinafter as the “SUP Notice“).
For these purposes, a ‘single-use plastic product’ means a product that is made wholly or partly from plastic and that is not conceived, designed or placed on the market to accomplish, within its life span, multiple trips or rotations by being returned to a producer for refill or re-used for the same purpose for which it was conceived [1].
The following food and beverage packaging and packaging devices will be subject to the new obligations and the new registration method:
- packets and wrappers, containing food intended for immediate consumption from these bags or packages without any further preparation (a number of indicators focusing on the flexibility of the packaging, the nature of the food, the possibility of direct consumption from the bag etc. can be used to interpret and apply the product-specific criteria in the category of bags, packages and the food contained therein listed in the annex[2]; for example, bags or packages containing biscuits, nuts, potato chips, bread or sandwich wrappers, etc.),
- beverage containers and beverage bottles (the definition of beverage containers and beverage bottles includes caps and lids, and also includes beverage containers made of composite materials; e.g. pouches, plastic bottles, composite beverage boxes, one-piece plastic beverage containers with a moulded breakaway cap etc.),
- plastic carrier bags (this includes in particular plastic shopping bags, such as lightweight plastic shopping bags supplied to the consumer at the point of sale with a wall thickness of less than 50 microns or very lightweight plastic shopping bags supplied to the consumer at the point of sale with a wall thickness of less than 15 microns; on the other hand, it does not include, for example, thicker plastic shopping bags with a wall thickness of more than 50 microns or plastic waste bags),
- cups for beverages (in particular plastic beverage cups for cold drinks, pre-filled paper cups with a plastic inner or outer layer, plastic cups for juices or drinks containing alcohol sold at retail and wholesale, plastic cups for instant drink powders or soups to which e.g. milk or water must be added before the product can be consumed etc.),
- food containers (food containers are those containers which are like boxes sold with or without lids, can contain food and facilitate transport and are usually sold with printed information on the contents, ingredients and often the weight of the product).
So far unclear definitions
Although the SUP Notice is quite comprehensive in its product definitions, product overview and illustrative examples for almost all categories of plastic packaging, there are still gaps in the clarity and precision of the definitions, in particular for the first category mentioned above – packets and wrappers containing foodstuffs intended for immediate consumption from these bags or packages without any further preparation.
In the framework of the preparation of the methodological instruction of the Ministry of the Environment of the Czech Republic, which will specify which products (do not) fall under the scope of the new littering obligation, the basic categories of products and their specifications (e.g. unit of portion or its range, immediate consumption, etc.) will be defined more specifically. The vagueness and lack of clarity of the definitions is mainly related to dairy products (yoghurt, sliced cheese, etc.), meat products, biscuits and confectionery, ice cream and other.
Conclusion
The newly introduced obligation to pay for littering costs, brought about by the SUP Directive and other related legislation at European and national level, aims to create a specific legal framework that would effectively limit the negative environmental, health and economic impacts of the use of single-use plastic products and set general minimum requirements for extended liability schemes for producers or persons placing them on the market or in circulation.
We will continue to monitor the work on the Ministry of the Environment’s littering obligation methodology, as well as other related legislative and other processes, and will keep you informed of further progress and news in due course.
If you have any questions regarding littering, as well as other substantive issues related to food law, we are at your disposal, so please do not hesitate to contact us.
Mgr. Tereza Dvořáková, attorney-at-law – dvorakova@plegal.cz
Mgr. Jakub Málek, managing partner – malek@plegal.cz
28. 11. 2022
[1] Art. 3 par. 2 of the SUP Directive
[2] Art. 4.2.1. SUP Notice