Plastics and packaging laws in the United Kingdom

The laws outlined in this section are principally similar across the UK. However, as the UK comprises a number of devolved administrations, for convenience we have primarily set out the position in England and Wales. In some cases, there are different referable laws in Scotland and Northern Ireland; however, the principles are much the same. In light of the exit of the UK from the EU and the Protocol on Ireland and Northern Ireland there has been divergence in some applicable rules to Northern Ireland. Where Scottish rules are materially different, we have noted this below.

1. What is the general legislative framework regulating packaging and plastic waste in your jurisdiction?

General waste management controls in the UK that apply to plastic and packaging are found largely in the following legislation:

  • Producer Responsibility Obligations (Packaging Waste) Regulations 2007 as amended and the Packaging (Essential Requirements) Regulations 2015 (“Packaging Waste Regulations”) which implement EU Directive 94/62/EC (the Packaging and Packaging Waste Directive);
  • Waste (England and Wales) Regulations 2011 which implement EU Directive 2008/98/EC (the Waste Framework Directive);
  • waste obligations under the Environmental Protection Act 1990 (EPA 1990)—such as the unauthorised or harmful deposit, treatment or disposal of waste under EPA 1990, s 33 and the waste duty of care under EPA 1990, s 34; and
  • environmental permitting requirements set out in the Environmental Permitting (England and Wales) Regulations 2016 (“EPR 2016”) and in Scotland the Waste Management Licensing (Scotland) Regulations 2011 which govern how waste must be kept and set out the main offences in terms of permitting and hence in terms of waste management.

Additional legislation exists in respect of specific plastics, which is set out further below. 

At 11pm on 31 December 2020, the transition period came to an end. Various statutory instruments came into effect to amend EU-derived domestic legislation and ensure that UK environment and waste legislation continues to operate as intended. Under the Protocol on Ireland and Northern Ireland certain EU laws continue to apply to Northern Ireland on a dynamic basis. The UK government has indicated that going forward it may consider alternative approaches to plastics legislation compared to the EU. Devolved administrations will take their own approach where they are able to.

The much-delayed Environment Bill, which is expected to receive royal assent this Autumn, will be an important piece of legislation for plastics and packaging. In particular, the Bill will provide powers to establish EPR schemes and DRS, improve the consistency of recycling systems across the country, reform the controls placed on plastic waste exports and implement new charges for single-use plastics.

2. Are there any measures, existing or expected, in respect of single-use plastics?

As the UK is no longer a Member State of the EU, it is generally not required to transpose the Single-Use Plastics Directive into domestic law. However, under the Northern Ireland Protocol, certain provisions of the Single-Use Plastics Directive must be implemented in Northern Ireland. In summary, these are the requirement to introduce measures to reduce the consumption of plastic cups and food containers, the requirement to restrict the placing on the market (i.e. ban) certain single-use plastic products, product-specific requirements relating mainly to plastic bottles and new labelling requirements for some plastic products. These provisions need to be transposed in Northern Ireland by 1 January 2022 (compared to 1 July 2021 for EU Member States).

As waste is a devolved area of competence, the devolved administrations have taken slightly different approaches to dealing with single-use plastics.

Carrier Bags

The Single Use Carrier Bags Charges (England) Order 2015 introduced a minimum 5p charge on all single use carrier bags in England from October 2015 for companies with 250 or more employees. There is a similar charge on single use carrier bags in Wales, Scotland and Northern Ireland. The legislation has recently been amended to exclude online grocery delivery bags from 21 March to 21 September 2020 (and from 9 April to 31 December 2020 in Wales and from 2 April 2020 to 31 May 2021 in Scotland), as part of the Government’s response to COVID-19, though this exclusion has not been extended.

A consultation on the proposal to increase the cost per carrier bag to 10p, and to extend the scheme to all retailers, closed on 22 February 2019. On 21 May 2021, the charge was increased to 10p per bag and this now applies to all English retailers, under The Single Use Carrier Bags Charges (England) (Amendment) Order 2021. In its recent consultation document on reducing single use plastics, the Welsh Government set out that it is building on the success of the single use carrier bag charge, with steps to address the consumption of other types of bag. The charge in Scotland became 10p on 1 April 2021.

Single Use Plastic Items

The draft Environment Bill, which should take effect in Autumn 2021, includes a provision allowing the government (and devolved administrations) to place charges similar to those levied on carrier bags on other single-use plastic items.

Secondary legislation was laid before Parliament in March 2020 banning plastic straws, drinks stirrers and plastic stemmed cotton buds (subject to certain exemptions) in England. Due to COVID-19, Ministers had decided to delay the ban until October 2020 to avoid additional burdens on businesses so it came into force on 1 October 2020 pursuant to The Environmental Protection (Plastic Straws, Cotton Buds and Stirrers) (England) Regulations 2020. Subject to a transition period, from that date, the supply or sale of single-use plastic straws and cotton buds to end-users, or of single-use plastic drink stirrers to any customers (i.e. end-users and businesses) is banned in England. The government has confirmed that it intends to consult on potential bans for additional single-use plastic items in the future. In its recent response to a consultation on standards for bio-based, biodegradable and compostable plastics, the government confirmed that it is considering introducing a ban on oxo-degradable plastics (subject to further evidence and consultation).

The Welsh Government has announced that it plans to ban a range of single use plastics from 2021 to match the EU Single-Use Plastics Directive. A consultation issued on 30 July 2020 set out proposals for banning the nine single use plastic items listed in Article 5 of the Single-Use Plastics Directive including straws, stirrers, cotton buds, balloon sticks, plastic cutlery and expanded polystyrene food packaging. Views were also sought on future proposals, including extending the ban to wet wipes. However, there is some uncertainty regarding whether devolved administrations have the requisite legal basis for introducing bans on products which are permitted to be sold in other parts of the UK. The UK Internal Markets Act 2020 provides that, once goods have been made in or imported into one part of the UK, they should be capable of being freely sold within all constituent parts of the country. The Welsh Government launched a legal challenge in January 2021 against these provisions, notably since it intends to bring forward legislation to ban a wider range of single-use plastics compared to England. The judicial review was rejected in April, because specific legislative proposals had yet to be drawn up and therefore the challenge was “in the abstract” and could not proceed.

A ban on plastic-stemmed cotton buds is in force in Scotland as of October 2019. The Scottish Government plans to roll out further measures to meet or exceed the standards set out in the EU Single-Use Plastics Directive by July 2021. The Scottish Government have also consulted on the introduction of market restrictions on certain single-use plastic goods in Scotland, noting its intention to introduce legislation on this issue in 2021. The summary of responses, published in March 2021, confirms that respondents generally expressed strong support for the introduction of market restrictions on these single-use plastics. Responses were used to inform the drafting of the new statutory instrument – the Environmental Protection (Single-use Plastic Products and Oxo-degradable Plastic Products) (Scotland) Regulations 2021. These regulations would ban the supply and manufacture of various single-use plastic products: polystyrene cups and containers; cutlery; plates; stirrers; and all oxo-degradable plastic products. In addition, the supply of straws and balloon sticks to end users would be banned. Although there are certain exemptions, breach of these regulations could give rise to criminal offences punishable by fines. A further consultation from March to April 2021 was held to gather views on the draft regulations. However, the impact of the UK Internal Market Act 2020 on the proposed restrictions remains unclear.

3. Are there any existing or expected producer responsibility schemes in place for packaging or plastics?

The Packaging Waste Regulations require producers of packaging to be responsible for a proportion of the costs for recycling and recovery of that packaging waste. The financial contribution is determined using a formula that takes into account the producer’s role in the supply and distribution chain for the packaging. The criteria which trigger producer obligations are:

  • annual turnover over £2 million; and
  • handling more than 50 tonnes of packaging or packaging materials in the previous calendar year. 

At the beginning of 2019, the UK Government consulted on reforming the current producer responsibility scheme for packaging, including:

  • reforms to the Packaging Waste Regulations to increase the use of packaging that can be easily recycled; and
  • introducing extended producer responsibility (“EPR”) for packaging, to place the full net costs of managing packaging waste on businesses who use packaging and who are best placed to influence its design.

EPR schemes have gained strong political support across the UK, with commitments found in the Resource and Waste Strategy for England (2018), the Scottish Government’s circular economy strategy “Making Things Last” (2016), the Welsh Government’s circular economy strategy “Beyond Recycling” (2021) and Northern Ireland’s Waste Management Plan (2019).

In late July 2019, the UK Government stated that it will implement EPR from 2023. Provisions are included in the Environment Bill granting powers to the relevant national authorities to adopt secondary legislation to implement EPR. In its Waste Prevention Programme for England (which is subject to ongoing consultation), the Government has indicated that it would use these powers to implement an EPR scheme in England. Similarly, the Welsh and Scottish Governments have indicated that powers under the Environment Bill may be used to introduce EPR schemes. The secondary legislation can make provisions about targets to be achieved and mandate the registration of persons subject to a producer responsibility obligation. The secondary legislation may also set out provisions in relation to compliance schemes and enforcement measures.

A second, more detailed consultation on the EPR regime ran from March to June 2021. This consultation was run by the UK government and devolved governments and focussed on the specific proposals for introducing the EPR scheme, including the scope of costs, the nature of producers’ obligations, the way the scheme would be governed and enforced and packaging waste recycling targets. Under the proposals, packaging producers would be made responsible for the full cost of managing the packaging they place on the market, including the cost of managing commonly littered packaging. The fees payable would be “modulated” so as to increase recycling rates. For instance, producers of packaging which cannot be recycled would face higher fees. In addition, the proposals would require that packaging is clearly labelled to inform consumers about whether it is recyclable. As the consultation has only recently closed, a government response setting out its next steps is yet to be issued.

4. Are there any existing or expected deposit return schemes (“DRS”) in place for packaging or plastics?

The draft Environment Bill confers powers on the national authorities of England, Wales and Northern Ireland to allow deposit return schemes to be established and enforced. The previous government indicated on 23 July 2019, in its response to the consultation on introducing a DRS, that a second consultation on the specific details of the DRS would take place in early 2020, following which, the deposit schemes would be introduced from 2023.

The consultation was pushed back into 2021 by virtue of delays caused by the COVID-19 pandemic and was run from March to June. This consultation considered the design of the DRS scheme which would be introduced in England, Wales and Northern Ireland. The following proposals were consulted upon:

  • Different stakeholders would have different obligations under the DRS. Producers would be required to sign up to the scheme, report to the scheme administrator, pay a registration fee and place a redeemable deposit on in-scope drinks containers. Retailers would be required to accept returns and ensure that the deposit price is added at the point of sale.
  • the DRS scheme would apply to materials rather than product types and the proposed scope would include PET plastic bottles, glass bottles and cans made from steel or aluminium.
  • The scheme would require an organisation which operates the DRS to achieve a 90% collection rate within three years of the DRS being introduced. There would be no corresponding recycling targets but the scheme operator would be required to ensure that the collected materials are passed on to a re-processor.
  • All retailers of in-scope drinks containers would be required to accept returns by hosting a return point (i.e. a reverse vending machine or manual return point), subject to limited exemptions. Proposals for online retailers and takeaway services are also outlined.
  • In-scope containers would be subject to mandatory labelling to indicate that they fall within the DRS.

As this consultation has only recently closed, feedback is still being analysed. A government response setting out next steps will be published in due course.

A key focus for the UK Government is to implement a scheme which ensures regulatory consistency across the UK, bearing in mind that the Scottish Government has brought forward separate measures for a DRS. The Deposit and Return Scheme for Scotland Regulations 2020 create the legal framework for a DRS in Scotland for drinks containers made from PET plastic, glass, steel, or aluminium, with a deposit level set at 20p. The Regulations were approved by the Scottish Parliament on 29 April 2020 and the scheme will go live in July 2022.

The House of Commons’ Environmental Audit Committee (“EAC”) is also carrying out an inquiry into how DRS should be designed. Whilst this inquiry is still ongoing, the EAC has emphasised that the DRS should be consistent across all the constituent nations of the UK.

5. Are there any existing or expected taxes on packaging or plastics?

In the 2020 Budget, the UK Government announced that a new tax will apply from April 2022 to plastic packaging produced in or imported into the UK that does not contain at least 30% recycled plastic.

On 12 November 2020, HMRC published a policy paper detailing the plastic packaging tax along with the draft statutory instrument (the “Draft SI”) that will bring the tax into law. The Draft SI confirms that the tax will be levied against plastic packaging produced in, or imported into, the UK if it does not contain at least 30% recycled plastic. For these purposes, plastic packaging is defined as packaging that is predominantly plastic by weight. A rate of £200 per tonne will be payable on the plastic packaging falling within the scope of the tax. The policy paper confirms that the government intends to legislate in time for the tax to be operative from 1 April 2022.

A further policy paper published on 3 March 2021 has added additional detail on the proposals. This paper confirms that the relevant legislation will be introduced in the Finance Bill 2021 and indicates that organisations which manufacture or import more than 10 tonnes of plastic packaging into the UK per annum will be required to register with HMRC. The tax is expected to impact around 20,000 businesses. The new primary legislation is currently receiving scrutiny in the House of Lords. The government has confirmed that after the primary legislation is passed, it will work with industry to develop regulations and guidance to provide clarity on the type of products which will be taxable. Secondary legislation will be introduced later in 2021 to implement the tax.

A further policy paper issued on 10 May 2021 is intended to provide guidance to businesses regarding the new plastic packaging tax, to help them prepare for its introduction in April 2022.

A levy on disposable cups was the subject of a HM Treasury call for evidence in 2018, but the UK Government concluded that a levy would not, at that point, be effective in encouraging widespread reuse.

However, the Environment Bill confers powers on the relevant national authorities for England, Wales and Northern Ireland to establish charges for single use plastic items. The Scottish Government has confirmed that they will introduce provisions in the Circular Economy Bill, which will enable charges to be applied to items that cause environmental harm such as single-use drinks cups. The Welsh Government has also stated that it is exploring the possibility of a Welsh tax or charge on single-use plastic cups to drive demand away from such items.

6. Are there any measures, existing or expected, regarding micro-plastics or the use of microbeads in products?

Micro-plastics

In January 2019, the European Chemicals Agency (“ECHA”) published its proposal for a restriction on micro-plastic particles that are intentionally added to mixtures, used by consumers or professionals, and released into the environment. It is not yet clear whether the UK Government will provide for equivalent UK measures on microplastics now that the transition period has ended.

Microbeads

The Environmental Protection (Microbeads) (England) Regulations 2017 impose a ban on the manufacture of microbeads in rinse-off personal care products in England from 9 January 2018, and sales of the same from 30 June 2018. Similar provisions apply in Wales, Northern Ireland and Scotland through referable laws.

7. Are there any existing or expected recycling or waste reduction targets in place for packaging or plastics?

At present, the Packaging Waste Regulations 2007 require obligated producers to meet annual recycling targets, known as business packaging waste recycling targets. Total UK packaging waste recycling rates are reported to the government on an annual basis.

The UK Government has set the following targets in its Waste and Resources Strategy, December 2018:

  • 90% of all plastic drinks bottles to be collected for recycling by 2029;
  • 75% recycling rate for packaging by 2030;
  • municipal waste to landfill at 10% or less by 2035;
  • eliminate avoidable waste of all kinds by 2050.

The UK Government set out in its 25 Year Environment Plan that it will work to a target of eliminating avoidable plastic waste by the end of 2042.

A Plastic Pollution Bill was considered by Parliament in early 2019. This would have: set targets for the reduction of plastic pollution; required the Secretary of State to publish a strategy and annual reports on plastic pollution reduction; and established an advisory committee on plastic pollution. The Bill failed to complete its passage through Parliament before the end of the session.

Nevertheless, the Environment Bill includes provisions that allow the Secretary of State to set long-term targets. The Secretary of State is required to set a long-term target on each of the four priority areas, which include resource efficiency and waste reduction, which will be monitored by a new public body, the Office for Environmental Protection.

As part of the consultation on EPR run by the UK and devolved governments in 2021, it was proposed that, from 2024, packaging recycling targets would be set for producers with EPR obligations as part of the new EPR scheme. These targets would initially relate to six packaging materials (plastic, card, steel, aluminium, glass and wood), although the government may extend these to additional materials where this would be effective in increasing recycling rates. The proposed targets would increase annually on a trajectory towards 2030. More detailed proposals will be brought forward by the end of 2023 and the government has indicated that it will work with the industry to design these.

The government is currently reviewing the Packaging (Essential Requirements) Regulations 2015. The main purpose of these regulations is to ensure that businesses responsible for packing or filling products into packaging do not place packaging on the market unless it fulfils essential design requirements. The review, which is expected to reach its conclusion later this year, will consider how the essential design requirements can be enhanced to support waste prevention through, for instance, increased re-use of packaging.

8. Is the use of recycled materials in food packaging regulated?

There is no current legislative requirement to use recycled plastics in food and cleaning product packaging. However, in anticipation of the expected measures relating to single use plastics and plastic packaging set out above, many manufacturers are already reviewing their supply chains and are setting sustainability targets regarding the use of recycled plastic in product packaging, including food packaging.

The European Union (Withdrawal) Act 2018 provides that existing EU law which applied directly in the UK’s legal systems, such as EU regulations, was converted into UK law at the end of the transition period (IP completion day). EU Regulations in respect of food contact packaging (Regulation (EU) No 10/2011 and Regulation (EC) No 282/2008) form part of that body of retained EU law. The Materials and Articles in Contact with Food (Amendment) (EU Exit) Regulations 2019 were put into place to fix inoperabilities in the retained legislation.

Circular Economy

The UK Government and devolved administrations have placed a growing focus on the transition towards the circular economy. On 30 July 2020, the UK, Welsh, Scottish and Northern Ireland governments announced that the measures contained in the EU Circular Economy Package (CEP) will be transposed into domestic law without a consultation. The CEP measures are contained within amendments to The Waste Framework Directive, The Packaging and Packaging Waste Directive, The Landfill Directive, The Waste Electrical and Electronic Equipment Directive, The Batteries and Accumulators and Waste Batteries and Accumulators Directive and The End-of-Life Vehicles Directive.

Some legislative amendments will be made by the Secretary of State where they relate to existing legislation which applies on a UK or GB basis. However, as waste policy is largely a devolved matter, Scotland, Wales and Northern Ireland will make their own regulations to transpose those non-UK wide elements (except those measures transposed by the Secretary of State on behalf of England and Wales).

The devolved administrations are responsible for their own strategies and policies relating to waste management. Recent developments in respect of the circular economy include:

  • In England, the new Waste Prevention Programme (“WPP”) is subject to a consultation which closed on 10 June 2021. The proposed WPP sets out the government’s priorities for taking action to manage resources and waste in accordance with the waste hierarchy, a key principle of which is the prevention of waste by increasing reuse, repair and remanufacturing. The document sets out a number of high-level proposals for action in areas such as the designing-out of waste, the encouragement of re-use, repair, refilling and remanufacturing as well as certain sector-specific actions. English local authorities are responsible for the collection of household and business recycling and, following concerns that there is a lack of consistency regarding the materials collected and the means of collection, the government is consulting on proposals to harmonise the services across the country. This consultation closes on 4 July 2021
  • The Scottish Government launched a consultation in November 2019 seeking views on proposed legislation for a Circular Economy Bill. However, as a result of the COVID-19 pandemic, the Scottish Government announced on 1 April 2020 that the proposed Circular Economy Bill would not be introduced in the present Parliamentary session. It has still not been introduced. On 18 March 2021, the Scottish Government announced a new £70 million fund to improve recycling infrastructure, which aims to support progress towards waste and recycling targets.
  • Following a consultation in 2019, the Welsh Government published its circular economy strategy ‘Beyond Recycling’ in March 2021. The strategy confirms ambitions for Wales to become a zero-waste nation by 2050, as well as being the world’s “number one recycler”. The Welsh Government has set a minimum target for waste recycling of 70% for 2025 and has indicated that the introduction of an EPR scheme for packaging and a DRS for drinks containers will be critical for meeting this target. The strategy also indicates that the Welsh government intends to restrict the sale of the most commonly littered single-use plastic items and will encourage the use of renewable bioplastics.
  • In Northern Ireland, the ‘Environment Strategy for Northern Ireland’ is currently under development and will consider the main long-term environmental priorities for Northern Ireland. It is intended that the Northern Ireland waste management strategy ‘Delivering Resource Efficiency’, published in 2013, will also be revised. A discussion document on recycling and the separate collection of waste of a household nature was issued in June 2020.
Environment Bill

One of the main aims of the Environment Bill is to set a new direction for resources and waste management and change the way government, businesses and individuals produce and consume products.

The Bill includes powers to implement extended producer responsibility in areas other than packaging, such as for textiles and tyres. Powers will also be created to enable the government to further regulate the import, export and transit of waste. The government has stated that this will allow them to ban the export of polluting plastic waste to non-OECD countries.

Provisions are included in the Bill in relation to arrangements for the separate collection of household, industrial and commercial waste for recycling. Organisations that produce waste will have a duty to segregate certain materials that can be recycled and to arrange for their separate collection, including plastic, paper and card, and food waste. Alongside these arrangements, the government will be able to create new charging schemes, including as a means to recover costs from the separate collection of waste for recycling.

The progress of the Environment Bill through Parliament has been delayed due to COVID-19. However, it was reintroduced to the House of Commons on 26 May 2021 and passed its third reading. The draft Bill has now been passed to the House of Lords for further scrutiny. The government has indicated that the Bill is likely to receive royal assent in the Autumn, ahead of the UK hosting the COP26 climate conference.

Voluntary action

In the UK, stakeholders in the private sector have shown a willingness to engage in new approaches to plastics and packaging and take action in this sphere. For example, the UK Plastics Pact is a voluntary initiative which seeks to support the circularising of the plastics economy. Signatories represented 85% of the plastic packaging placed on the UK market. The Pact sets out a number of targets for 2025, including:

  • The elimination of all problematic or unnecessary single-use plastic packaging through redesign, innovation or alternative delivery models (such as reuse).
  • 100% of plastic packaging being reusable, recyclable or compostable.
  • 70% of plastic packaging being effectively recycled or composted.
  • 30% average recycled content across all types of plastic packaging.
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Olivia Jamison
Partner
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Alex Ibrahim
Of Counsel
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Joanna Waddell
Senior Associate
Edinburgh
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