The Climate Crisis is the Defining Emergency of Our Time

As of July 3, single-use plastic products marketed in the EU/EEA must comply with the requirements and restrictions of Directive 2019/904 on the Reduction of the Impact of Certain Plastic Products on the Environment (“Single-Use Plastic Directive” – “SUPD”). To help Member States implement the SUPD into their national laws and apply its requirements, on May 31, 2021, the European Commission published its long-awaited Guidelines on the Scope of the SUPD. The Guidelines take different and controversial approaches on the scope the SUPD and the nature of plastics and continue to leave important issues unanswered.

The Requirements of the SUPD

The Single-Use Plastic Directive imposes restrictions and requirements on: (i) single-use plastic products that fall within the scope of the specific categories listed in the different Parts of the Annex to the SUPD, and (ii) all products made of oxo-degradable plastic (i.e., made of “plastic materials that include additives which, through oxidation, lead to the fragmentation of the plastic material into micro-fragments or to chemical decomposition”).

In particular, the SUPD imposes the following requirements and restrictions on oxo-degradable plastic products and single-use plastic products marketed in the EU/EEA:

  • Prohibition on Placing on the Market: The SUPD prohibits the placing on the market of all products that contain oxo-degradable plastic, as well as single-use plastic products listed in Part B of the Annex to the SUPD. Part B includes plastic cutlery and plates, beverage stirrers, beverage containers made of expanded polystyrene, including their caps and lids.
  • Consumption Reduction Obligations: The SUPD requires Member States to ensure a reduction of the consumption of single-use plastic products listed in Part A of the Annex to the Directive. Part A of the Annex lists cups for beverages (with their covers and lids) and specific food containers as single-use plastic products that are subject to this consumption reduction obligation. To achieve this objective, Member States may impose different measures, such as national consumption targets, bans on the offer of the products free of charge at the point of sale, obligations to replace the products with reusable alternatives, and even outright bans on the marketing of the products.
  • Product and Design Requirements: The lids and caps of single-use plastic products listed in Part C of the Annex, e, plastic beverage containers of up to three liters, must be designed in such a way that they remain attached to the container during the product’s intended use.
  • Minimum Recycled Content: The single-use plastic products listed in Part F of the Annex to the SUPD, e., beverage containers of up to three liters that are produced from polyethylene terephthalate as their major component, must be made of at least 25% recycled plastic by 2025 and 30% by 2030.
  • Marking and Labelling Requirements: Sanitary towels, tampons, tampon applicators, wet wipes, tobacco products (g., plastic filters) and cups for beverages, as listed in Part D of the Annex to the SUPD, must carry a mark/label in accordance with Commission Implementing Regulation 2020/2151 informing consumers of the presence of plastic in the product, the negative impact of littering, and the product’s appropriate waste disposal options. Implementing Regulation 2020/2151 imposes specific requirements on the wording, design, size, color, and position of the marking. It also allows producers to comply with the requirements by means of a sticker if the single-use plastic products are marketed before July 4, 2022.
  • Extended Producer Responsibility: Member States must impose extended producer responsibility schemes on producers of single-use plastic food containers, cups for beverages, wet wipes, tobacco products, and all other products listed in Part E of the Annex to the SUPD. Producers of these products will be required to cover the costs of collecting, transport and treatment of their waste, as well as the cost of cleaning up litter and organizing awareness campaigns for the general public.
  • Separate Collection: By 2025, Member States must collect separately 77% of single-use plastic beverage bottles placed on the market (incl. their caps and lids), through the implementation of deposit-refund schemes or separate collection targets for producers. The target is set at 90% by 2029. In practice, this obligation means that producers will have to increase the collection of their waste single-use plastic bottles and/or increase their contributions to the waste take-back schemes of which they are members.
  • Awareness Raising: Member States must also take measures to inform consumers of re-use systems and waste management options at their disposal, and the impact of littering and other inappropriate waste disposal for all single-use plastic products listed in the Annex to the SUPD and for fishing gears containing plastic.

The European Commission’s Guidelines: What is a Single-Use Plastic Product?

As explained above, most of the requirements of the SUPD apply to single-use plastic products that fall within the categories of products listed in the different Parts of the Annex to the Directive. The SUPD defines a “single-use plastic product” as 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.” It also defines “plastic” as a “material consisting of a polymer [as defined by the EU REACH Regulation 1907/2006 on Chemicals], to which additives or other substances may have been added, and which can function as a main structural component of final products, with the exception of natural polymers that have not been chemically modified” (Art. 3(1) SUPD).

These definitions suggest that a product will be a single-use plastic product if the following conditions are met:

  1. A product is made of “plastic”. This will depend on whether the materials used to make the product: (i) are polymers or mixtures of polymers; (ii) other than “natural” polymers that are “not chemically modified;” and (iii) can function as a main structural component of the product; and
  2. The plastic product is “single-use.”

The European Commission’s Guidelines on the Scope of the SUPD provide different controversial clarifications on the concept of a single-use plastic product.

Polymer

To be a plastic product, the product must be made of polymers or mixtures of polymers. The SUPD refers to the definition of polymer included in the REACH Regulation 1907/2006, which states that a polymer is substance that meets the following criteria: (i) over 50 percent of the weight for that substance consists of polymer molecules (i.e., of molecules that contain a sequence of at least 3 monomer units, which are covalently bound to at least one other monomer unit or other reactant); and (ii) the amount of polymer molecules presenting the same molecular weight must be less than 50 weight percent of the substance.

Polymers will be considered to be plastic materials unless they are “natural” and they “are not chemically modified” (and they function as a main structural component of the products).

“Natural” Polymer

The Commission’s Guidelines take the view that a polymer will only be natural if its polymerization process actually takes place in nature (i.e., it may not be the result of an industrial process even if it involves living organisms). According to the Guidance, this means that cellulose and ligning extracted from wood are natural polymers, while polymers resulting from biosynthesis via artificial industrial fermentation are not.

Natural Polymer that Are “not Chemically Modified”

Even if the substances used in the products are natural polymers, they will be considered plastic if they are chemically modified (and the substances function as a main structural component of the products).

The European Commission’s Guidelines take the view that whether or not a natural polymer is chemically modified during its production process depends on whether the chemical structure of the polymer resulting from the production process (i.e., outgoing polymer) is different from that of the ingoing polymer.

Following this reasoning, the Guidelines argue that regenerated cellulose, in the form of lyocell, viscose and cellulosic film, is not considered chemically modified because the outgoing polymer is not chemically modified in comparison to the ingoing polymer. By contrast, cellulose acetate is regarded as a chemically modified polymer because the chemical modifications of the polymer occurring during the production process remain present at the end of the process (i.e., the chemical structure of the outgoing polymer is different to that of the ingoing polymer).

The Guidelines also clarify that if the chemical modifications result from reactions that are only taken place during the extraction process of natural polymers, the polymers will not be considered chemically modified. The Guidelines especially mention cellulose and ligning that are extracted from a wood pulping process as examples of such natural polymers.

The Polymer Functions as a Structural Component of the Product

The last condition to qualify as a plastic product is that the polymer (other than a natural polymer that is not chemically modified) must function as a structural component of the product. The Guidelines state that this condition is a generic concept and clarify that the definition of plastic of the SUPD does not restrict or specify the type of product or the amount of polymer required to qualify as a plastic. Thus, for example, cardboard coated with plastic and paper cups with a plastic lining are single-use plastic products. In contrast, the recitals of the SUPD and the Guidelines make clear that the use of plastic paints, inks and adhesives do not render a product a plastic product.

The Plastic Product Is “Single-Use”

To be a single-use plastic product subject to the SUPD, the product must also be “single-use.”

The SUPD will only apply to plastic products that: (i) are designed to be disposed of after one use, or (ii) consumers usually throw away after one use, even if the products are not initially designed/conceived as such.

The Guidelines provide various criteria to assess whether a plastic product is single-use or multi-use, including the product’s washability or the possibility to empty and refill a product without damaging it. For example, plastic cups that can be reused after being washed will not be considered single-use plastic products.

The Guidelines also add that meeting the criteria on reusable packaging outlined in Article 3(2) of Directive 94/62 on Packaging and Packaging Waste (“Packaging and Packaging Waste Directive” – “PPWD”) will demonstrate that a plastic packaging or product is not single-use (unless consumers typically perceive or use it otherwise).

Application of the SUPD and National Implementation

The requirements of the SUPD apply to products made of oxo-degradable plastic materials and to single-use plastic products listed in the Annex to the Directive that are placed on the market as from July 3, 2021. In contrast to other EU product legislation, the SUPD defines the concept of placing on the market within the context of the particular Member State, and not the EU/EEA as a whole. According to the Directive, “placing on the market” is “the first making available of a product on the market of a Member State” (emphasis added). In general terms, this essentially means that single-use plastic products (listed in the Annex) that are marketed in a particular Member State as of July 3 will have to comply with the requirements of the Directive even if they were already marketed in another Member State (for example, imported into the EU via another Member State) before that date. The European Commission is expected to publish Guidance providing further clarification on the concept of placing on the market for purposes of the SUPD.

To date, several EU Member States have already at least transposed some of the requirements of the SUPD into their national law. This is the case of France, Germany and Portugal. Many other Member States, such as Belgium, Italy, Poland and Spain are currently in the process of finalizing and adopting their draft national implementing laws.

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