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Freshfields Sustainability

| 5 minutes read

Re-packaging old rules: How will the EU’s proposed new packaging Regulation tackle excessive packaging and packaging waste?

Yesterday, the European Commission published its proposal for a new Regulation on packaging and packaging waste. The Regulation repeals the existing Packaging and Packaging Waste Directive 1994 (the Directive), and, if passed in its current form, would provide affected businesses and EU Member States with more certainty on EU-wide packaging rules by addressing perceived gaps in the existing framework.

The new Regulation would apply to all packaging sold and used in the EU as well as all packaging waste generated within the EU. Packaging, broadly, includes all products for the containment, protection, handling, delivery and presentation of a product. The draft Regulation applies to economic operators, widely defined to include manufacturers, suppliers of packaging, importers, distributors, and fulfilment service providers. Fulfilment service providers includes anyone offering services such as: warehousing, packaging, addressing and dispatching without having ownership of the products involved.

Objectives of the Regulation

The draft Regulation sets out the practical means by which the EU could meet the Commission’s target of ensuring that all plastic packaging is reusable or recyclable by 2030 as set out in the EU’s strategy for plastics in a circular economy. The focus areas are: (i) reducing the amount of packaging placed on the EU market; and (ii) preventing the generation of packaging waste.

In many ways, the aims of the draft Regulation look much the same as the ambitions of the previous Directive. Many of the targets under the Regulation are the same, such as the overall target for recycling (by 31 December 2025 Member States should ensure that a minimum of 65% of all packaging waste by weight is recycled). However, there are some key changes as to how those targets are to be achieved.

Changes proposed to the existing framework 

The draft Regulation proposes some significant changes to the current EU packaging and packaging waste framework:

  • Recyclable packaging: the Regulation would stipulate a high threshold for what is considered to be ‘recyclable packaging’, requiring packaging to be designed for recycling at scale and to be sorted easily (amongst other requirements). The Regulation would also allow the Commission, through delegated acts, to introduce a new grading system to assess recyclability design, ranking packaging from A to E in line with specific design for recycling criteria and performance grades; Grade A being the highest (design for recycling criteria of a unit of packaging is higher or equal to 95% in terms of weight of the unit of packaging.) The lower the grade, the higher the fees producers will have to pay through Extended Producer Responsibility obligations.
  • ‘Empty space’ packaging: Although the broad definition of ‘packaging’ remains materially the same as in the Directive, the Regulation would capture new assemblies of packaging. For example, it seeks to reduce packaging with excessive ‘empty space’, including space filled by materials such as bubble wrap, air cushions, foam fillers or polystyrene in order to reduce the amount of packaging used. The Regulation would require that packaging be designed so that its weight and volume is reduced to the minimum necessary. Economic operators, who supply products to a final distributor or end user, will be required to ensure that each unit is scaled down to its minimum size and meets the new ‘empty space ratio’ limit of 40%, defined as the difference between the volume of packaging and the volume of the product within the packaging (i.e. no more than 40% of the total volume of packaging can be empty space). Whilst all packaging producers will need to re-assess their packaging methodology, if the Regulation is passed, ecommerce businesses are specifically highlighted in the draft Regulation as a focus area.
  • Restrictions and bans on certain packaging formats: The draft Regulation contains new prohibitions on:
    • the use of ‘superfluous’ packaging which does not fulfil a packaging function (e.g. cardboard boxes containing toothpaste containers);
    • packaging formats which are misleading to consumers such as packaging which creates the impression of increased product volume. While the draft Regulation accepts that marketing remains a packaging function, marketing does not in and of itself justify additional packaging weight and volume; and
    • Specific packaging formats including single use packaging for condiments, packaging in expanded polystyrene (such as food containers), single-use mini-bar bottles, and single-use miniature soaps, shampoo bottles and body lotions (which are often used in hotels). Note that the Single-Use Plastics Directive already bans certain types of plastic packaging.
  • QR codes to track reusabilityThe draft Regulation proposes mandatory QR codes (or other type of digital carrier) to provide consumers with more information on the product’s packaging reusability and to show collection points for recycling. The Regulation also envisages a time where the use of QR codes could facilitate the tracking and calculation of rotations of the plastic through the recycling system. This would place more information in the hands of consumers and require manufacturers to ensure that they are closely involved in the journey of packaging through-out its life-cycle.

The EU’s renewed focus on packaging must be understood in the context of its agreement to sign up to a legally binding UN Treaty on plastic pollution, which is expected to be published by the end of 2024. As a large amount of plastic pollution is reported to come from packaging, this Regulation, should it come into force, will be a step towards ensuring the EU can comply with a future UN Treaty.

The position in the UK 

The UK has also started to turn its attention towards the impact of packaging, albeit at a slower pace. Packaging featured prominently in DEFRA’s policy paper entitled ‘A Green Future: Our 25 Year Plan to Improve the Environment’ which was published in 2018. More recently, the Environment Act 2021 gave DEFRA the power to make provisions requiring products and packaging to meet ‘resource efficiency requirements’.  DEFRA consulted on waste prevention (including packaging issues) between March and June 2021, the feedback from which is currently under review. The consultation sought views on how to effectively shift away from hard-to-recycle and single-use products, and support research and innovation into more sustainable materials to conserve resources.

Next steps 

Now that the proposed Regulation has been published by the Commission, it will be up to the European legislators – the European Parliament and the Council – to adopt their respective positions under the ordinary legislative procedure. This usually takes one to two years. Considering the European elections in May 2024, the legislators hope to reach an agreement by early 2024 to avoid a delay in adoption. There has already been pushback by some Member States and industry against strict reuse requirements; however, other countries and NGOs have been more welcoming of the proposal. Negotiations will therefore be tense, and it remains to be seen whether the level of ambition will stand in the final legal text.

Separate to this, the Commission has also published an EU policy framework yesterday on biobased, biodegradable and compostable plastics. The communication, which does not contain specific legislative proposals, looks to create a coherent policy framework for these plastics through the use of existing legislation and standards. The framework identifies advantages to these plastics, such as waste prevention and the decoupling of fossil carbon from chemical processes, whilst also acknowledging several challenges to increased use of these materials, including labelling and contamination issues.


manufacturing, regulatory, europe, climate change