EU Proposal for a Regulation on Packaging and Packaging Waste Nearing Adoption – The Highlights and Challenges Ahead

The European Commission (EC) proposal for a Packaging and Packaging Waste Regulation (PPWR), issued on 30 November 2022, is now nearing finalization and is scheduled to be adopted before the end of 2024. It will enter into force 20 days after publication in the Official Journal of the European Union (OJEU) and will apply 18 months after entry into force (EIF), although longer transitional provisions apply to certain requirements. The PPWR will repeal and replace the current Packaging and Packaging Waste Directive 94/62/EEC (PPWD).

The choice of a switch from a Directive to a Regulation is intended to lead to greater harmonization on the implementation of measures among the EU Member States. Specifically, while Directives set forth goals and obligations to be met by the Member States, the means of their implementation is left to the discretion of the national authorities. This has led to significant discrepancies between the Member States with regard to extended producer responsibility (EPR) and environmental labeling obligations. By contrast, Regulations are effective throughout the Member States such that this issue does not arise.

In addition to fostering greater harmonization, the PPWR is intended to bring about significant changes in the legislative framework for packaging waste in the EU by defining ambitious targets, boosting high-quality ‘closed loop’ recycling, and reducing the need for primary natural resources. This article is intended to highlight some significant changes proposed in the PPWR.

I. Packaging Design

A. Substances of Concern

The PPWR, as proposed, will prohibit food packaging from being placed on the EU market if it contains per- and polyfluorinated alkyl substances (PFAS) in a concentration of or above the following limit values:

• 25 ppb for any PFAS as measured with targeted PFAS analysis
• 250 ppb for the sum of PFAS measured as sum of targeted PFAS analysis
• 50 ppm for PFASs (polymeric PFAS included)

This is aligned with the European Chemicals Agency (ECHA)’s universal PFAS restriction proposal and will apply from the application date of the PPWR (i.e., well before ECHA’s proposed restriction). The European Commission (EC) will conduct an evaluation to assess the need to amend or repeal the PFAS restriction under the PPWR within four years of EIF.

The PPWR will maintain the heavy metal restrictions in place under the PPWD for lead, cadmium, mercury, and hexavalent chromium, with the sum total concentration level limit of 100 mg/kg for all four heavy metals in packaging or packaging components being.

By 31 December 2026, the EC, assisted by the European Chemicals Agency (ECHA), must prepare a report on substances of concern (SoCs) in packaging/packaging components to determine the extent to which they negatively affect the re-use or recycling of materials or chemical safety. The report may list SoCs present in packaging or packaging components and the extent to which they could present an unacceptable risk to human health.

B. Recyclability

The PPWR, as proposed, will require that all packaging be recyclable. By 1 January 2028, the EC must adopt delegated acts setting, amongst others, design for recycling (DfR) criteria and recycling performance grades.[1] By 1 January 2030 or 24 months after EIF of the aforementioned delegated acts (whichever is later), all packaging placed on the market must comply with the DfR criteria. Packaging with a recyclability grade below 70% will not be considered recyclable (must be Grade A, B, or C as described in Table 3 of Annex II of the PPWR).

By 1 January 2030, the EC must adopt implementing acts establishing, among others, the methodology for the recycled at scale assessment per packaging category. By 1 January 2035 or 5 years after EIF of the aforementioned implementing acts (whichever is later), all packaging must be recycled ‘at scale.’[2]

Importantly, extended producer responsibility (‘EPR’) fees will be modulated based on performance grade.

Certain exemptions from this requirement apply that are of relevance for food packaging. For example, there are exemptions for contact sensitive packaging for infant formula and follow-on formula, processed cereal-based food and baby food, and food for special medical purposes. So-called “innovative packaging” may also be exempted for a limited period and upon prior notification to the competent authority.

C. Recycled Content in Plastic Packaging

The PPWR proposes to increase the recycled content of plastic packaging. By way of example, in the plastic part of certain “contact sensitive” packaging (which includes food packaging), mandatory targets for recycled content required to be recovered from post-consumer waste are set forth as follows:[3]  

Packaging exempted from this requirement includes compostable packaging and any plastic part representing less than 5% of the total weight of the whole packaging unit.

It is noteworthy that within three years of the EIF of the PPWR, the EC is required to review the state of technological development and environmental performance of bio-based plastic packaging. Based on this review, the EC could draw up a legislative proposal that would allow bio-based feedstock to be used as a replacement for post-consumer plastic waste to meet recycled content targets “if suitable technologies for food packaging complying with the requirements of Regulation (EU) 2022/1616 are not available.”

D. Packaging Minimization

The PPWR, as proposed, will require that packaging be reduced to the minimum necessary for ensuring its functionality by 1 January 2030. Packaging not necessary to satisfy certain performance criteria and packaging only intended to increase the perceived volume of the packaging will be banned unless subject to geographical indications of origins protected under EU law. The PPWR will require that the empty space must be reduced to the minimum necessary. Further, economic operators who supply products to a final distributor or end user in grouped packaging, transport or e-commerce packaging must ensure that the ratio of empty space in the packaging in relation to the packaged product(s) does not exceed a maximum of 50%.

E. Restrictions on Certain Packaging Formats

On a related note, the PPWR, as proposed, will ban several types of single-use packaging, including: 

• Single-use plastic (‘SUP’) packaging used by retailers to group goods sold in cans, tins, pots, tubs, and packets which are designed to enable or encourage end-users to purchase more than one portion
• SUP packaging for less than 1.5 kg pre-packed fresh fruit or vegetables. Member States may provide exemptions, if needed, for a number of reasons, including to avoid water loss, turgidity loss, microbiological hazards, or physical shocks
• SUP packaging for foods and beverages filled and consumed within premises in the hotels, restaurants, and catering (HORECA) sector
• SUP packaging in the HORECA sector containing individual portions or servings (e.g., coffee creamers, sugar, sauces)

F. Re-use and Re-fill Targets

According to the PPWR, business operators making use of reusable packaging will be obliged to participate in one or more systems for re-use that meet specific requirements (for closed loop and open loop systems). It will also require Member States, by 1 January 2029, to ensure that deposit and return schemes (DRS) are set up for: 

• Single-use plastic beverage bottles with a capacity of up to 3 liters
• Single-use metal containers with a capacity of up to 3 liters

There are many requirements in the PPWR intended to promote re-use or re-fill solutions. For example, 

• 24 months after EIF, in the HORECA sector, final distributors serving beverages or ready-prepared food in take-away packaging will be obliged to provide the option to offer the goods filled in consumers’ containers at no additional charge and inform consumers about the availability of refillable option
• 36 months after EIF in the HORECA sector, final distributors serving beverages or ready-prepared food in take-away packaging must provide a reusable option, with the obligation of offering the goods in reusable formats at no additional charge, and inform consumers about the availability of the reusable option.

There are also re-use targets for transport packaging and sales packaging for transport, some of which are quite controversial (for example, proposed re-use requirements for shrink wrap films for pallets despite industry comments that it is not technically feasible to re-use these films for pallets).

G. Declaration of Conformity and Technical Documentation

The PPWR details the requirements that manufacturers of packaging must meet. They must, for example, carry out a conformity assessment, draw up a Declaration of Conformity, and maintain this together with the technical documentation specified in the PPWR on file for 10 years after reusable packaging (five years for single-use packaging) is placed on the market. These documents must also be made available to the Member State enforcement authorities upon request. 

The PPWR also sets obligations for other actors in the supply chain, including importers, distributors, and EU-authorized representatives.

II. Compostable Packaging

By way of derogation (i.e., exemption) from the recyclability requirement, the PPWR foresees that permeable tea and coffee bags and single-serve units[4], sticky labels for fruits and vegetables, and very lightweight plastic carrier bags shall be compostable in industrially controlled conditions and shall be compatible, when required by the Member States, with home composting standards. Member States may also require that the following be compostable:

1. non-permeable tea and coffee bags and single-serve units composed of material other than metal, very lightweight plastic carrier bags, and lightweight plastic carrier bags
2.  other packaging that the Member State already required to be compostable before the application date of the PPWR. 

Any other packaging (including biodegradable plastic polymers) must allow material recycling without affecting the recyclability of other waste streams. The requirements for compostable packaging will apply 36 months after the EIF of the PPWR.

III. Environmental Labelling

The PPWR will introduce labelling requirements for the packaging, per se, for consumer articles. Examples of the requirements include the following:

• Labels with information on the material composition on the packaging to facilitate consumer sorting
• Labels on packaging reusability and a QR code/other digital data carrier providing information on re-use and collection points
• QR labels or similar technologies to identify SoCs present in packaging material, along with concentrations. 

Several Member States, including France, Italy, Spain, and Portugal have introduced environmental labelling obligations. The PPWR aims to tackle national labelling requirements, which may limit the free movement of packaging throughout the EU. The PPWR would limit Member State authority to require labelling, which would be obstructive to the free movement of goods for product packaging which complies with the PPWR labeling obligations. By way of exception, the PPWR would allow Member State-specific labelling requirements to identify participation in a national EPR scheme or a DRS (other than DRSs set up under the PPWR for single-use plastic beverage bottles and single-use metal beverage containers).

IV. Extended Producer Responsibility

EPR obligations are currently largely left to the discretion of the Member States. This has led to noticeable discrepancies in the scope and content of EPR obligations, with some Member States having system participation, collection, registration, and information obligations, while other Member States maintain more minimal requirements. The PPWR intends to harmonize fundamental concepts by defining terms such as ‘manufacturer,’ ‘importer,’ ‘producer,’ ‘economic operator,’ ‘supplier,’ and ‘authorized representative’ and outlining their respective obligations.

By way of example, the PPWR, as proposed, would introduce a national registration obligation for producers[5] prior to placing packaging or packaged products on the market of each Member State. The EC would publish implementing acts establishing the format for the registration, and the specific data required to be reported for each packaging and material. The goal is to create greater harmonization among national EPR schemes, although differences among Member State programs could still arise.

V. Next Steps

Political agreement on the PPWR was reached by the EC, the European Parliament, and the Council at the trialogue negotiations on 4 March 2024. The English language version of the text was the subject of a favorable vote of the European Parliament during the plenary session of 22-25 April 2024 (the text is available HERE). Thereafter, the text underwent linguistic-legal review and was translated into all EU languages. Hence, at this point, the text simply needs to be formally voted on by the new European Parliament (elected during the 6-9 June 2024 elections) and endorsed by the Council.

Clearly, the PPWR, with its ambiguous targets and the tight timeframes for compliance, notably with respect to recyclability and recycled content, will pose challenges for industry.

[1] These will be based on Table 3 of Annex II and the parameters listed in Table 4 of Annex II for packaging categories listed in Table 1 of that Annex.

[2] Article 3(28) of the PPWR defines ‘packaging waste recycled at scale’ as “packaging waste which is collected separately, sorted and recycled in installed infrastructure, using established processes proven in an operational environment which ensure, at Union level, an annual quantity of recycled material under each packaging category listed in Table 2 Annex II, equal to or greater than 30% for wood and 55% for all other materials; it includes packaging waste that is exported from the EU for the purpose of waste management and which can be considered to meet the requirements of Article 53 (11).”

[3] Minimum limits expressed per packaging type/format calculated as an average per manufacturing plant and year

[4] When the packaging is intended to be used and disposed of together with the product

[5] The term ‘producer’ encompasses ‘manufacturer’, ‘importer,’ and ‘distributor’