Single-use plastics will disappear, new obligations will be imposed on businesses
Nearly two months ago the Ministry of Climate and Environment published a proposal to implement the Single-Use Plastics Directive ((EU) 2019/904) into Polish law. The amendment is supposed to enter into force no later than 3 July 2021, but it is raising many doubts.
We wrote about the SUP Directive last year. Then the deadline for implementing new solutions in Poland seemed far off. Now there’s just over a month left for adoption of measures in Poland enabling achievement of the aims of the SUP Directive. To this end, the Ministry of Climate and Environment has proposed a bill amending the Act on Duties of Businesses in the Management of Certain Wastes and the Product Fee, and certain other acts, which covers most of the solutions adopted by the European Union (the rest of the regulations are to be introduced by the proposed amendment to the Act on Management of Packaging and Packaging Waste and certain other acts).
Ban on marketing of certain products
The bill includes a list of SUP products which will be banned from placement on the market. It tracks the list in the directive, and includes:
- Cotton bud sticks
- Cutlery (forks, knives, spoons, chopsticks)
- Plates
- Straws
- Beverage stirrers
- Sticks for balloons
- Food containers made of expanded polystyrene (aka styrofoam), i.e. receptacles such as boxes, with or without a cover, used to contain food which is:
- Intended for immediate consumption, either on-the-spot or takeaway
- Typically consumed from the receptacle, and
- Ready to be consumed without any further preparation, such as cooking, boiling or heating,
including food containers used for fast food or other meals ready for immediate consumption, except beverage containers, plates, and packets and wrappers containing food
- Cups and other beverage containers made of expanded polystyrene, including their caps and lids.
Significantly, the ban applies to placement of these products on the market, not each sale of such products. Consequently, products first introduced onto the Polish market before entry into force of the implementing act can continue to be sold throughout Poland (even more than once) until current inventories are exhausted.
Permanent reduction in the use of plastic
Not all SUP products will be covered by the ban on placement on the market, although some of them will be subject to new obligations. The SUP Directive provides for introduction of mechanisms intended to achieve a permanent reduction in the use of such products (other than the banned ones), such as:
- Cups and other beverage containers, including caps and lids
- Food containers, i.e. receptacles such as boxes, with or without a cover, used to contain food which is:
- Intended for immediate consumption, either on-the-spot or takeaway
- Typically consumed from the receptacle, and
- Ready to be consumed without any further preparation, such as cooking, boiling or heating,
including food containers used for fast food or other meals ready for immediate consumption, except beverage containers, plates, and packets and wrappers containing food.
To this end, the Polish legislation proposes that businesses operating retail, wholesale or food-service locations collect a fee from the buyer, at a maximum of PLN 1 per unit of such packaging. The amount of the fee would be set in an executive regulation issued by the Minister of Climate and Environment in consultation with the ministers for public finance and economy.
Such businesses would also be required to provide buyers access to alternative products not made of plastic, or reusable products.
Expanded responsibility of producers
The bill implementing the SUP Directive also provides for additional fees. A fee would be imposed on undertakings placing the following products on the market:
- Food containers, i.e. receptacles such as boxes, with or without a cover, used to contain food which is:
- Intended for immediate consumption, either on-the-spot or takeaway
- Typically consumed from the receptacle, and
- Ready to be consumed without any further preparation, such as cooking, boiling or heating,
including food containers used for fast food or other meals ready for immediate consumption, except beverage containers, plates and packets and wrappers containing food
- Packets and wrappers made of elastic materials, containing food ready for immediate consumption from the packet or wrapper without any further preparation
- Beverage containers with a capacity of up to three litres, i.e. containers used to store beverages, such as bottles, including caps or lids, as well as beverage packaging of mixed materials, including caps or lids, but not glass or metal beverage containers whose caps or lids are made of plastic
- Beverage cups, including caps or lids
- Lightweight plastic carrier bags as defined in Art. 3(1c) of Directive 94/62/EC on packaging and packaging waste.
These annual fees would be earmarked for management of waste arising from products of the same type, and would be set at a maximum of PLN 0.05 per unit of the product placed on the market. The specific rate would be set in an executive regulation issued by the Minister of Climate and Environment in consultation with the ministers for public finance and economy.
Further to the producer’s expanded responsibility, a fee has been proposed that would be earmarked for conducting public educational campaigns.
Marking obligation
Some products requiring the incurrence of fees will also have to bear visible, legible and irremovable markings indicating that the product contains plastic and should be properly disposed of. Such markings were designed and promulgated in Commission Implementing Regulation (EU) 2020/2151 of 17 December 2020 laying down rules on harmonised marking specifications on single-use plastic products, and will appear on:
- Sanitary towels (pads), tampons and tampon applicators
- Wet wipes (pre-wetted personal care and domestic wipes)
- Tobacco products with filters and filters marketed for use in combination with tobacco products
- Beverage cups.
This raises the question of whether listed products stocked by a business before entry into force of the implementing act (previously placed on the market) will be subject to the marking obligation, or it will be possible to continue selling them under the existing rules until inventories are exhausted. It seems that the need to label products already placed on the market, covering all such products not yet purchased by end users, would be difficult to execute.
Problems under the proposed new solutions
At the draft stage, the proposed regulations are generating many doubts among businesses. Many of these doubts concern the interim provisions governing the issue of continued sale of products covered by the ban but already placed on the market before entry into force of the act. Distributors and potential buyers are worried about whether it will be possible to sell existing stocks of products covered by the ban, and consequently whether this uncertainty will reduce the interest in these types of products (no one will want to buy the existing inventory).
A similar concern applies to the marking obligation. Will products subject to this obligation but stocked prior to entry into force of the new regulations (already placed on the market) have to be marked with a new sticker, or can they continue to be sold under the prior rules until inventories are exhausted?
The issue of classification of products as falling under the obligations specified in the SUP Directive is equally problematic. This issue should be resolved through guidance issued by the European Commission, which has yet to be officially published. The draft guidance somewhat helps classify such products, but does not directly resolve the future fate of all single-use plastic products.
Summary
It seems that doubts are generated not only by the number and amounts of the fees that will be imposed on sellers and buyers of single-use plastics in the future. Problems can arise at the stage of classification of a given product as subject to the new obligations and prohibitions. After all, they extend to products that are not only single-use and made of certain plastics, but also meet specific requirements for particular product categories. Only when these issues are resolved can it be determined whether a specific business will be impacted by the new obligations.
Moreover, as the clock ticks, the chance that the SUP Directive will be transposed into Polish law on time is decreasing. The legislative process is usually lengthy, and the bill has not yet been analysed by parliamentarians, who may identify a need to modify some provisions.
If there is a delay, businesses should not suffer any consequences. The SUP Directive is addressed to the member states of the European Union, which are required to comply with their obligations on a timely basis.
Paulina Wojtkowska, Environment practice, Wardyński & Partners
