Europe’s new packaging waste regulation: Are special rules for plastic illegal?

22 Feb 2024 --- The EU’s proposed Packaging and Packaging Waste Regulation (PPWR) special rules for plastic packaging and exemptions for other materials, such as coated paper, may violate EU law by discriminating against plastic packaging, according to a new legal assessment. 

The plastics packaging industry is urging lawmakers to remove material-specific rules to prevent environmental harm and ensure legal and planning certainty for companies, but environmentalists argue that plastic packaging has enjoyed favorable regulation to date while pollution has continuously increased. 

The assessment was conducted by international law firm Dentons and commissioned by European Plastics Converters (EuPC), the German IK Industrial Association for Plastic Packaging and the French trade association Elipso.

The report finds that the bans on plastic film for a six-pack of bottles or plastic packaging for unprocessed fruit and vegetables are not compatible with EU law. 

“The bans only on plastic packaging contradict the original objectives of the PPWR and the environmental principles of the EU. They would merely lead to a switch to single-use packaging made from other materials, for example, paper and cardboard packaging, which is often less sustainable,” says Gaël Bouquet, Elipso’s director general. 

The planned bans for plastic packaging for unprocessed fruit and vegetables are not compatible with EU law, find industry experts.According to the assessment, provisions that prohibit plastic packaging only, require it to be reused or exempt coated paper packaging from the recycled content quotas likely violate the principle of equal treatment as there are no objective reasons for such unequal treatment.

“Council and European Parliament have so far ignored the existing scientific facts and findings on the benefits of plastic packaging in a climate-neutral circular economy,” adds Bernard Merkx, EuPC’s director general.

“To make matters worse, the large number of plastic discriminations in the PPWR completely reverses the principle of material neutrality. The report shows the legislator’s clear limits.”

Free ride for paper?
In light of this assessment, Zero Waste Europe’s (ZWE) founder Joan Marc Simon, makes the case that packaging regulations have historically been favorable to the plastics packaging industry. 

“The devil is in the details [to achieve material neutrality], and policy cannot be neutral — it all depends on what instrument one uses to implement policies,” he says.

“EU packaging legislation to date has been very favorable to plastic packaging since EPR fees are calculated on the basis of weight. As a result, plastic is the material that has seen the biggest growth during the last number of decades.”

“It is true that current PPWR discriminates against plastic packaging vis-a-vis paper packaging. Paper packaging almost always contains plastic and is even less recyclable than plastic, yet this time the policymakers decided to grant a free ride to paper.”Paper packaging almost always contains plastic and is less recyclable than plastic, says Simon. 

“Let’s not forget that the free-ride 15 years ago was given to plastic packaging, which has had disastrous effects as outlined by the Center for Climate Integrity’s latest study, which details that plastic industry moguls were fully aware of the impact of plastic and that it was near-impossible to separate and recycle effectively.”

Providing certainty 
Legal experts at Dentons also criticize procedural infringements, claiming that the European Parliament and Council have not considered all relevant factors in their proposals. 

In a joint appeal, the associations call on the EU member states and the European Parliament to remove the material-specific special rules in the ongoing trilogue negotiations to create legal and planning certainty for companies.

Dentons identifies that all of the special rules for plastic packaging and exemptions for other materials analyzed most likely violate the EU principle of equal treatment. 

Such discrimination is “counterproductive” to the objectives of the PPWR, claims the plastic packaging industry, and “likely to lead” to environmental problems by replacing light and easily recyclable plastic packaging with heavier and less recyclable packaging materials, causing more packaging waste and higher GHG emissions.

Respecting the waste hierarchy 
ZWE’s founder Simon says defining the parameters policymakers will use to decide what is best for the environment is crucial. “If it’s carbon intensity, they will discriminate against glass — if it is recyclability, they will discriminate against paper — if it is littering and toxicity, they will discriminate against plastics.”

Larissa Copello, ZWE’s Packaging & Reuse policy officer, tells Packaging Insights that the key parameters are: 

• Disposability: moving away from single-use packaging by avoiding unnecessary packaging and supporting reusable systems. 
• Safety: restrict or ban hazardous chemicals in packaging.
• Recyclability: ensure all packaging placed in the market can be effectively recycled at the end of life. 

Meanwhile, Simon reiterates that the waste hierarchy should be respected and that reusable packaging should be prioritized over single-use recycling.

“But this waste hierarchy is also not respected. That’s why the PPWR offers a crucial opportunity to overturn our packaging waste crisis and point the EU toward a circular economy,” she says.

By Natalie Schwertheim