Five Takeaways from the UN Climate Change Conference (COP26)

Earlier this month, Scotland became the first part of the UK to implement a ban on single-use plastics. The Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021 (the “Regulations“) came into force on 1 June 2022, and are intended to tackle plastic waste and to encourage businesses to make the switch to reusable alternatives, promote waste reduction and cut emissions.

However, the ban is also ground-breaking in that it is one of the first examples, if not the very first example, of the UK Internal Market Act 2020 (“UKIMA“) affecting the practical application of devolved legislation and so largely delaying the Regulation’s de facto effect.

Scotland takes the first step

Previously, the legislation covering single use plastics in Scotland prohibited the manufacture and supply of plastic-stemmed cotton buds. However, the Scottish Government wanted to go further to address the perceived environmental harms of single-use plastics: according to Zero Waste Scotland, it is estimated that in Scotland alone we use 300 million plastic straws, 276 million pieces of plastic cutlery, 50 million plastic plates and 66 million polystyrene food containers every year.

The Regulations stem from the European Commission’s Single-use Plastic Directive (2019/904/EC), which entered into force in 2019 (the ‘Directive’). Article 5 of the Directive required EU Member States to prohibit the placing on the market of specified single-use plastic products and oxo-degradable plastic products.

The UK has of course since left the EU, and as such is no longer required to incorporate the Directive into domestic law. However, the UK and Scottish Governments have each stated their commitment to match or exceed the standards set by the Directive. Scotland has taken the first step with the Regulations.

Rest of the UK

England, Wales and Northern Ireland are currently consulting on equivalent legislation, which is likely to be consistent with the Directive and so with the requirements of the Regulations.

Concept of ‘Single-Use’ plastic

The term single-use covers any product 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.” So, for example, items that are designed to be used multiple times, such as reusable plastic cutlery, are not within the scope of the Regulations.

In assessing whether a product is within scope, it may be necessary to consider design characteristics such as the product’s expected functional life, i.e. whether it is intended and designed to be used several times before final disposal, without losing product functionality, physical capacity or quality, and whether consumers typically in fact perceive and use it as a reusable product. Relevant product design characteristics include the material composition, washability and repairability of a particular product.

What products are in scope?

The Regulations ban supplying, offering to supply and even possessing for supply (all in the course of a business) certain single-use plastic products, specifically:

  • expanded polystyrene beverage containers and cups, including their caps, covers and lids;
  • expanded polystyrene food containers;
  • plastic cutlery (including forks, knives, spoons and chopsticks);
  • plastic plates; and
  • plastic beverage stirrers.

The Regulations also make it unlawful to manufacture in Scotland any of the above products from the relevant materials, whether for supply in Scotland or elsewhere in the world.

The Regulations also prohibit supplying, offering or possessing (but not manufacturing) single-use plastic balloon sticks and single-use plastic straws. That is subject in both cases to some exemptions, including business-to-business supply and the supply of plastic straws in a care setting, school or prison, or on request in a pharmacy or catering establishment.

In each case, being made even partly from the relevant material – e.g. items that are plastic-lined or coated, such as a paper plate with a plastic lining or coating – will put a product in scope of the ban.

Impact of the UK Internal Market Act

The immediate legal effect of the Regulations has been largely negated by the application of UKIMA. That Act established market access principles applying to the circulation of goods in the UK, including a mutual recognition principle. This means that goods that have been produced in or imported into one part of the UK, and which can be sold or supplied there without contravening a “relevant requirement” (i.e. a legislative restriction relating to the characteristics, presentation, production etc. of the goods) can also be sold in any other part of the UK, notwithstanding any relevant requirement that would otherwise apply in another part of the UK. For more on the mutual recognition principle, see Part 2 of our four-part series on what was then the Internal Market Bill.

As a result of this principle, the Regulations do not apply to products other than those manufactured in or imported directly into Scotland. Accordingly, while the Regulations purport to ban broad categories of single-use plastic products, UKIMA means that products manufactured in or imported into any other part of the UK can in reality continue to freely circulate throughout the UK, including Scotland.

However, that situation is not expected to last long. The UK Government has agreed to exclude products covered by the Regulations from the scope of UKIMA, as part of the Common Frameworks programme undertaken by the UK Government and the devolved administrations to manage post-Brexit policy divergence in devolved areas. The UK Government has the power under section 10 of UKIMA to make regulations excluding the market access principles in certain cases, expressly including where that will give effect to a common framework. This will be the first use of that power. The relevant regulations have not yet been published in draft and will have to be approved by both Houses of Parliament. Section 10 of UKIMA also provides a process for seeking the consent of the devolved administrations (though they do not have a veto).

Those procedures will take a little time to work through, and at present it is not known exactly when they will conclude. In the meantime UKIMA will continue to suspend the practical operation of the Regulations in most cases. However, the Scottish Government is urging businesses to comply from 1 June regardless. Given that the changes are definitely coming once the UKIMA exclusion process is complete, and that businesses may not always know the part of the UK in which a given product was produced (or into which it was imported), that would seem a sensible course of action even if the strict legal obligation may not kick in for a while longer.

The cooperative approach taken on this issue seems to have avoided the political arguments that were expected to flare up as soon as UKIMA prevented the Scottish Government or Parliament from implementing desired regulation. However, it is unlikely to be the last time UKIMA has that effect, and unlikely that all future examples will be resolved quite so harmoniously.

Comment

The Regulations are the first part of the package of measures, as outlined in the Directive, that the Scottish Government has committed to implement to address a perceived ‘throwaway culture’ and reduce reliance on disposable items. The Regulations also sit alongside a broader range of initiatives already established or underway, such as the UK-wide approach (led by DEFRA) to develop an extended producer responsibility scheme for packaging that is intended to improve collection, recycling and recyclability of plastic and other packaging. Further regulation can therefore be expected in due course, and UKIMA may again have a part to play.

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