Updates

The Packaging Waste (Data Reporting) (England) Regulations 2023

  • Legal

Jurisdiction: England

Commencement: 30th June 2023

Amends: The Packaging Waste (Data Reporting) (England) Regulations 2023

Mini Summary

The Packaging Waste (Data Reporting) (England) Regulations 2023 are in force from 28th February 2023.

Duties are imposed on producers* in England to collect data on the amount and type of packaging** they put on the United Kingdom (UK) market from March 2023 (or from January 2023, if they have this data). The data is required to calculate the fees that producers will have to pay from 2024 as part of the new Extended Producer Responsibility (EPR). The new EPR system aims to deliver a more circular economy by charging producers to cover the collection and disposal costs of their packaging once it becomes waste.

*Producer, for the purposes of these Regulations, means an organisation operating in the UK as:

  • a brand owner;
  • a packer / filler;
  • an importer;
  • a distributor;
  • an online marketplace operator;
  • a service provider; or
  • a seller.

**Packaging is any material that is used to cover or protect goods that are sold to consumers and includes anything that is designed to be filled at the point of sale, e.g. coffee cups.

Exempt packaging

The following types of packaging are exempt from the requirements of these Regulations.

  • Reused packaging which is primary packaging (packaging that is in direct contact with the product itself, e.g. wine bottles).
  • Production residues from the production of packaging.
  • Packaging exported from the UK (except to a marine installation).
  • Reused secondary or tertiary packaging (except packaging imported into the UK).
  • Packaging which is already regulated as packaging for a scheme article under The Deposit and Return Scheme for Scotland Regulations 2020. The deposit and return scheme covers sealed drinks (e.g. cans of drinks) rather than single-use coffee cups which are covered under these 2023 Regulations.

N.B. These Regulations will be replaced in December 2023 by The Producer Responsibility Obligations (Packaging and Waste) Regulations 2023, which will include provisions for the introduction of the EPR.

The Producer Responsibility Obligations (Packaging Waste) Regulations 2007

These 2023 Regulations are currently in addition to The Producer Responsibility Obligations (Packaging Waste) Regulations 2007 which also put duties on organisations that handle packaging. They extend the responsibilities of those already obligated under the 2007 Regulations, and capture more organisations by reducing the threshold of packaging handling to 25 tonnes, and reducing the financial turnover threshold.

Duties

Producer obligations

The obligations imposed by these Regulations vary depending on whether the producer is classed as a small or large producer.

An organisation will be classed as a small producer if either:

  • its annual turnover is between £1 million and £2 million, and it is responsible for handling and supplying more than 25 tonnes of empty packaging or packaged goods through the UK market; or
  • its annual turnover is over £1 million, and it is responsible for handling and supplying between 25 and 50 tonnes of empty packaging or packaged goods through the UK market.

An organisation will be classed as a large producer if:

  • its annual turnover is £2 million or more; and
  • it is responsible for handling and supplying more than 50 tonnes of empty packaging or packaged goods in the UK in a calendar year (January to December).

Small producers

To comply with these Regulations, small producers must do the following.

  • Collect data on the amount and type of empty packaging and packaged goods they handle and supply through the UK market from January 2023 if they have the necessary information, otherwise from March 2023.
  • Retain the collected data for at least 7 years after the end of the data collection period*.
  • Submit data to the Environment Agency (EA) about the empty packaging and packaged goods handled or supplied through the UK market throughout 2023.

*Data collection period means:

  • the period between 28th February 2023 and 31st December 2023; and
  • in subsequent years, the 12-month period starting on 1st January.

Large producers

To comply with these Regulations, large producers must do the following.

  • Collect data on the amount and type of empty packaging and packaged goods they handle and supply through the UK market from January 2023 if they have the necessary information, otherwise from March 2023.
  • Retain the collected data for at least 7 years after the end of the data collection period.
  • Submit data to the EA about the empty packaging and packaged goods handled or supplied through the UK market every 6 months. The first report for the period ending on 30th June 2023 must be submitted by 1st October 2023; any subsequent reports must be submitted:
    • by 1st April for the 6 months ending on 31st December; and
    • by 1st October for the 6 months ending on 30th June.

Details on the data that needs to be collected and submitted are available for each type of producer in Schedule 1 (Collection and reporting information) and Schedule 2 (Licensors and Pub Operating Businesses).

Members of registered compliance schemes

A producer who is a member of a registered compliance scheme* is exempt from the data reporting obligations under these Regulations. Instead, the operator of the registered scheme must report the packaging data for them.

*Compliance schemes are third party organisations that help producers meet their EPR requirements. The public register of compliance schemes can be accessed here.

Regulator powers and duties

The EA is responsible for the enforcement of these Regulations. The EA must:

  • publish a list of the items recycled by each relevant authority; and
  • monitor compliance with the requirements under these Regulations by producers and operators of registered schemes.

The EA may also approve a person to verify the information submitted directly by a producer or provided by a producer to the operator of a scheme. The approved person would be, where the producer:

  • is an individual, that individual;
  • is a partnership, a partner;
  • is a company registered in the UK, a director or company secretary of that company;
  • is an unincorporated body, an individual who has control or management of that body; or
  • is a company which does not have a registered office in the UK, an individual who has control or management of the producer.

Offences and penalties

A producer who contravenes the duties under these Regulations, or fails (without reasonable excuse) to comply with any direction from the EA, is guilty of an offence which is punishable by a fine.

Amendment

Clarifications are made on when a brand owner is a producer in relation to packaging and responsibility for certain packaging is assigned to packers / fillers instead of brand owners. Also, responsibility for certain packaging is assigned to importers. These Regulations came into force on 30th June 2023 and apply to England only.

Where different individual branded or unbranded products are packed to be sold together, the brand owner is considered the producer for the packaging of an individual branded product, and the packer/filler is the producer in relation to any unbranded packaging they filled.

Brand owners

When more than one brand appears on filled packaging, the brand owner who makes the first supply of the filled packaging is to be treated as the brand owner and producer in relation to that packaging.

Packers / fillers

Packers / fillers are considered producers, where:

  • the packer/filler has filled packaging;
  • the packer/filler has put a brand on the packaging to assist with distribution, and not at the request of the brand owner;
  • there is no other brand on the packaging; and
  • for any packaging which the packer/filler adds to branded packaging otherwise than at the request of the brand owner.

Importers

An importer is also considered a producer:

  • in relation to any packaging imported by them into, and discarded in, the United Kingdom;
  • where the brand owner is responsible for the import of the packaging, but is not a large producer; or
  • where the brand owner is not established in the United Kingdom.

Schedule 1 (collection and reporting information) is amended to clarify and simplify the data reporting requirements for reusable and refillable packaging for producers. Certain requirements on collecting and reporting information are either simplified or removed.

Minor corrections are also made to the drafting and some incorrect cross-references are fixed.

 

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