Author: Simon Tilling and Elsa Hadley (Burges Salmon LLP)
Posted on: Lexology| 21st December, 2017
We take a look at how environmental and product stewardship law is addressing the concerns over the environmental impact of Christmas.
It’s that time of year when the environmental impact of Christmas makes news headlines. This year, reports that 100,000 tonnes of plastic packaging will be destined for disposal, rather than recycling, follow a general increase in public awareness of marine plastic pollution from the BBC’s Blue Planet II series.
Consumers are becoming smarter on environmental issues with products. Businesses need to stay ahead of the game, ensuring compliance with the regulatory regimes.
In this article we take a high level look at how some of those regimes operate.
What’s in my stocking?
A recent Swedish Chemical Agency investigation into substances in products on the Swedish market found that 18% of products tested had restricted substances above EU legal limits. For electrical goods, the figure rose to 37%. The next worst group was clothing and accessories, followed by children’s toys. Despite a plethora of EU product regulations to protect humans and the environment from harmful chemicals in products, non-compliant products are still finding their way on to the market.
The EU REACH Regulation
The EU regime for the control of chemicals – the EU REACH Regulation – places the burden on businesses to show that the substances used in manufacturing and incorporated into products are safe. One of the mechanisms to achieve this is through the information requirements for what are known as substances of very high concern (SVHC), being those substances that have a potential to be dangerous to human health and the environment, for example because they are carcinogenic, mutagenic or toxic to reproduction.
The REACH regime requires EU-based manufacturers of chemicals and EU-based importers from outside the EU to register the substances with the European Chemicals Agency (ECHA) and to coordinate their registration efforts with other companies seeking to produce or market those same substances. As part of this registration process, companies must provide information on the composition and possible effects of the substances being registered, as well as on their safe use. If these substances meet the SVHC criteria, they may be placed on the «Candidate» list for further investigation and this, in turn, will trigger additional obligations on importers or producers of articles containing those substances.
Of particular note is the obligation on importers to notify ECHA if an article placed on the market contains an SVHC at a concentration of more than 0.1% by weight.
A decision by the Court of Justice of the European Union in 2015 ruled that the threshold of SVHC concentration triggering the obligation was for every ‘article’ that makes up a more complex product. If the SVHC is present at more than 0.1% by weight in, for example, the handlebars of a bike, that triggers a reporting obligation even if the SVHC is lower than 0.1% of the bike as a whole.
There is also a legal requirement for retailers to answer questions from the public about SVHCs in the products they sell, driving a demand for information from the supply chain.
Retailers, product importers and those importing sub-components for product assembly in the EU need to understand what is in their products, both to comply with the law and for brand protection purposes.
The plastics problem
In response to growing public awareness – and concern – over plastic waste, Defra is considering a series of initiatives. It has brought forward legislation to phase out the production and use of microbeads in wash-on wash-off products such as exfoliating scrubs, it is considering further financial mechanisms for single use plastics to build on the success of the 5p plastic bag charge, such a refundable deposit scheme for plastic bottles, and it is looking at ways to make it easier for householders to recycle plastics.
UK recycling targets may move away from European weight-based targets on the grounds that there is a perverse incentive to focus on heavier recyclables such as grass cuttings over lightweight, but potentially more environmentally damaging, recyclables such as plastics. Much has been promised in 2018 to deliver on these aspirations and businesses should pay close attention.
Where does it go?
Plastic packaging waste has been making the headlines, but it is not the only waste generated during the Christmas festivities. For many campaigners, the answer comes from turning waste back into products. The concept of a ‘circular economy’ has been around for years and the European Commission has now published its Circular Economy Work Programme for 2018.
The concept behind a circular economy is to “close the loop” of product lifecycles, targeting increased recycling and re-use so as to regenerate and retain resources for as long as possible. This is an alternative to a more traditional, linear economy in which products are created for a single use and disposed of at the end of their lifespan.
The circular economy strategy was first proposed by the European Commission in the Circular Economy Action Plan of December 2015. The vision is intended to promote innovation, reduce waste and environmental harm, and extract the maximum value from all resources.
What does the Circular Economy Work Programme include?
Firstly, it sets out a limited number of legislative actions to complete work in priority policy areas over the next several months. The Commission intends to submit all legislative proposals no later than May 2018.
An annex provides an overview of priority pending proposals which include end-of life vehicles, waste batteries, electrical and electronic equipment, waste, landfill and packaging waste.
In the UK, businesses have welcomed the announcement of the return of the Definition of Waste panel in the Spring of 2018. Closed in 2016, in part because of lack of funding, the panel has been perceived by industry as injecting a level of certainty into when a product can be sold as such, and when it remains a waste. The distinction is hugely important.
The Waste Framework Directive sets out three basic tests to determine whether a product is end-of-waste:
• The waste has been converted into a completely new product which has a genuine market for its use.
• The processed substance can be used in exactly the same way as a non-waste material or product.
• The processed substance can be stored and used with no worse environmental effects when compared with the material it is intended to replace.
Achieving end-of-waste is crucial in establishing a functioning circular economy as it promotes innovative thinking and continued use of materials beyond the end of their initial lifespan.
While the UK may not feel concerned by the EU Commission’s Work Programme due to fast-approaching Brexit, the direction of domestic travel also seems to place emphasis on the importance of a circular economy, suggesting that the UK is likely to continue to promote the circular economy ideals no matter what deal is reached.