Environment and Health & Safety Legal Update Webinar – February 2023

On 24th February 2023 we held our environment and health & safety legal update webinar. During the session, we provided an overview of what has changed in environment and health & safety legislation in the past year. We also looked at any relevant legislation that is on the horizon.

The session began with a focus on the changes in environment legislation, including: 

  • The Plastic Packaging Tax & deposit return schemes
  • Building standards
  • Key changes in legislation relating to energy and climate change

We then moved on to look at key changes in H&S legislation, including: 

  • Key Coronavirus (COVID-19) updates
  • Building Safety Act 2022
  • REACH and chemicals update
  • CLP
  • UK CA/CE marking
  • The Road Vehicles (Construction and Use) (Automated Vehicle) Order 2022
Simple and clear legal updates specific to you

Questions & Answers

During the webinar, we gathered your questions and have answered them below. If you’d like to know more about our Consultancy Service or the Legislation Update Service, please contact us.

Environment Related Questions

Who needs to do ESOS Survey - what are the requirements?

An Energy Savings Opportunity Scheme (ESOS) survey is a mandatory energy assessment for large companies / undertakings*. It’s important to note that smaller organisations may also be required to carry out an ESOS assessment if they are part of a corporate group.

*A large company or undertaking means an organisation which either:

  • employs 250 or more employees in the UK; or
  • has an annual turnover exceeding £44 million and an annual balance sheet exceeding £38 million.

If an organisation qualifies, they must carry out ESOS assessments every 4 years. An ESOS assessment requires participants to do 3 things:

  1. Measure the total energy consumption across a 12-month period.
  2. Conduct energy audits or energy management activity to identify cost-effective energy efficiency opportunities.
  3. Report compliance to the Environment Agency (EA), on or before the compliance date of each phase.

More details on ESOS are available in this guidance.


Is medical device packaging exempted in relation to Plastic Packaging Tax?

Plastic packaging components will not be chargeable for the Plastic Packaging Tax if it is for use in the ‘immediate packaging’ of a human medicinal product. In relation to a medicinal product, the definition in the Human Medicines Regulation (2012) is “the container or other form of packaging directly in contact with the medicinal product”. In those Regulations, medicinal product is defined as:

  • Any substance or combination of substances presented as having properties of preventing or treating disease in human beings; or
  • Any substance or combination of substances that may be used by or administered to human beings with a view to –
    • Restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action; or
    • Making a medical diagnosis .

As a result, common packaging types such as rigid plastic bottles, sachets, tubes, stick packs and thermo-moulded strip pouches (unit-dose blister packaging) will not be liable for the UK Plastic Packaging Tax, unlike outer or secondary packaging layers. Medical devices therefore, are not captured under this definition and are not subject to the exemption as are not used for the immediate packaging of licensed human medicine.

However, it is worth noting that some specific medical devices are excluded from the tax (rather than exempt), but only if the plastic packaging forms an integral part of the goods.

A packaging component is an integral part of the goods where both the:

  • goods cannot reasonably be used or consumed without the component
  • component is expected to be discarded once the goods (of which it is a part of) are used, consumed or discarded.

An example of this would be an inhaler.

Therefore, plastic packaging components which are an integral part of the goods are not subject to the Plastic Packaging Tax and you do not need to account for them on your tax return.

In relation to the above question. We manufacture inhalers which have a plastic outer casing, what are the implications?

Plastic packaging components which are an integral part of the goods, are not subject to Plastic Packaging Tax and you do not need to account for them on your tax return.

A packaging component is an integral part of the goods where both the:

  • goods cannot reasonably be used or consumed without the component
  • component is expected to be discarded once the goods (of which it is a part of) are used, consumed or discarded.

An example of this would be inhalers.

Therefore, plastic packaging components which are an integral part of the goods are not subject to the Plastic Packaging Tax and you do not need to account for them on your tax return.

If the plastic packaging components used within medical devices do not form an integral part of the goods, then they would be subject to the tax.

Can you please expand more about 10 tonnes of package material usage? I was under the impression - we should require to apply additional packaging standard - if we do use more than 50 tones of packaging per year?

The 10 tonnes of packaging referred to during the legal webinar is in relation to the new Plastic Packaging Tax. This is a new tax with obligations on anyone that imports into the UK, or manufactures, 10 or more tonnes of plastic packaging. More information on this can be found here and government guidance is available here.

I think that the 50 tonnes of packaging you are referring to is in reference to different requirements set out under the Producer Responsibility Obligations (Packaging Waste) Regulations 2007. A business or organisation has duties under these Regulations if it:

  • handles more than 50 tonnes of packaging each year; and
  • has a turnover of over £2 million a year.

Business that meet this criteria are obligated as a packaging producer and must register as such with the relevant environmental regulator.

Handling of packaging includes both filling of packaging and the import of packaging, therefore when considering if a company has handled over 50 tonnes of packaging it should include the weight of packaging from imports. A business that is part of a group must add up the total amount of packaging handled and the annual turnovers of all parts of the group to see if they are an obligated packaging producer.  Obligated packaging producers will be given an annual recycling target that relates to the type and weight of packaging that they use / produce. This target is known as their ‘obligation’. A recycling obligation will be assigned for each material handled. The amount each business has to recycle is determined by three factors:

  • the amount of packaging the business handles;
  • the government business recycling target for the year; and
  • the activity the business carries out on packaging.

Further guidance on producer responsibilities can be found here.

From 1st January 2023 the extended producer responsibility requirements have reduced the threshold for packaging producers to 25 tonnes. There are different obligations for those that handle between 25-50 tonnes of packaging to those that handle over 50 tonnes, with the initial obligation being that from 1st January 2023 they must keep a record of the amount of packaging handled. There is a tool available to help determine if this change will apply to businesses, available via the following link: https://www.gov.uk/guidance/check-if-you-need-to-report-packaging-data.

We have red diesel heaters, there is a large tank with this in we haven't bought any since 21 it is barely used, are we better disposing or are we ok to use it up over time?

Any red diesel that was placed into the tank of a vehicle or machine before 1st April 2022 can still be used until it’s empty. However, any red diesel in a storage tank cannot be held and must be removed. The tank you mention would be classed as a storage tank and therefore should not be used.

If you have ISO 50001 are you exempt from ESOS surveys?

If you qualify for ESOS and your organisation is fully covered by ISO 50001, you do not need to carry out an ESOS assessment. You just need to notify the Environment Agency that you’re compliant with ESOS. Further guidance is available here.

In relation to Plastic Packaging Tax. Has there been any clarification as to whether printing a blank label is considered a substantial change and therefore liable for the tax?

Plastic Packaging Tax is due on plastic packaging components when they’re ‘finished’. A component is finished when it has undergone its last substantial modification. A substantial modification is the last manufacturing process which changes the nature of the packaging component. Labelling packaging is given as an example of a change that is not classed as a substantial modification as seen here.

Note that there are some draft regulations which were consulted on in the summer 2021. I would expect these to explain substantial modification further when they come into force: The Plastic Packaging Tax (General [Substantial Modification]) Regulations 2021. More information can be found here.


Is there any information available yet about the plans for a UK version of the Industrial Emissions Directive?

The EU Withdrawal Act 2018 maintains established environmental principles and ensures that existing EU environmental law will continue to have effect in UK law, including the Industrial Emissions Directive (IED) and Best Available Techniques (BAT) Conclusion Implementing Decision made under it.

The UK government has introduced secondary legislation under the EU Withdrawal Act 2018, and further legislation in the devolved administrations where required, to ensure the domestic legislation that implements the IED (including the Transitional National Plan) can continue to operate. This amends current legislation to:

  • correct references to EU legislation
  • transfer powers from EU institutions to UK institutions
  • ensure the UK meets its international agreement obligations.

The IED aims to protect both human and environmental health by reducing harmful industrial emissions across the European Union – primarily through the optimum application of BAT.

The UK Government is establishing a new regulatory framework to boost industrial emissions standards and reduce air pollution following Brexit. This will be through the UK’s new Best Available Techniques (BAT) framework.

Any new industrial emissions legislation is likely to come from the Environment Act 2021; Legislation Update Service will inform subscribers if this is the case.


How will the deposit and return scheme in Scotland apply to online only retailers? Is there any guidance on enabling return process to customers?

Online-only retailers are not required to operate return points under The Deposit and Return Scheme for Scotland Regulations 2020.

However, online-only retailers have an obligation to:

  • provide a takeback scheme for the collection of empty drink containers; and
  • reimburse customers for the 20 pence deposit.

The requirements for this takeback scheme are currently under review.

SEPA has also published a regulatory position statement which can be found here. This position statement indicates that enforcement action will not be taken against online retailers who do not offer a takeback service due to ongoing uncertainty regarding the scheme’s requirements. This position statement may be withdrawn at any time by SEPA.

More information on obligations for online retailers can be found here.

If you have already purchased single-use packaging can you use it for takeaway food, for example after the October date?

Currently, only the draft Regulations (The Environmental Protection (Plastic Plates etc. and Polystyrene Containers etc.) (England) Regulations 2023) have been published and no associated guidance has been issued. As a result, it is not yet clear if single-use plastic plates, cutlery, balloon sticks, expanded and extruded polystyrene food and drinks containers already purchased will be permitted to be used after October 2023. It is anticipated that there may be a period within which you can continue to supply or sell leftover supplies, as was the case with single-use plastic straws, cotton buds and drink stirrers, but this has not yet been confirmed.

It is worth noting that in the government’s Consultation outcome: Summary of responses and government response, it states that “businesses should prepare for the ban to apply in full, from October 2023. The Government’s intention is to bring the bans into force on 1 October, subject to Parliamentary approval”.

Legislation Update Service will inform subscribers when the Regulations and any associated guidance is published.

In relation to the question above: Will this have an effect on packaged meals for example in the airline industry?

Currently only the draft Regulations (The Environmental Protection (Plastic Plates etc. and Polystyrene Containers etc.) (England) Regulations 2023) have been published and no associated guidance has been issued.

In the government’s Consultation outcome: Summary of responses and government response, it states that the ban on the supply of single-use plastic plates, trays, and bowls will not apply to plates, trays, and bowls that are used as packaging, in shelf-ready pre-packaged food items as defined in regulation 3 of the Packaging (Essential Requirements) Regulations 2015 (such as bowls and platters in ready prepared meals). This is to avoid duplication or confusion with proposals for an extended producer responsibility scheme (EPR) for packaging.

It is our understanding therefore, that packaged airline meals will not be captured under these Regulations, but this cannot be confirmed until the Regulations and associated guidance have been published. Legislation Update Service will inform subscribers when these are published.

H&S Related Questions

Please expand on the requirements for product testing for UKCA.

The technical requirements that must be met to use UKCA marking will depend on the product. The guidance document on designated standards provides a list of standards that may be used to provide ‘presumption of conformity’.

The guidance document on conformity assessment provides information on which products can be self-declared and which products must be third-party assessed.

Do authorisations under EU Reach continue to be valid under UK REACH or is a new application required?

Authorisations granted by the European Chemicals Agency (‘ECHA’) prior to 31st December 2020 were automatically transferred to the Health and Safety Executive (HSE) under UK REACH. These authorisations will continue to apply under UK REACH until the existing authorisation made under EU REACH expires, unless otherwise notified.

Organisations may have requirements to provide information to the HSE as per the transitional agreements. More information on reporting requirements can be found here.


Does the Covid consideration for risk assessment consideration also now include schools. i.e. not required in schools now?

It is no longer a requirement for businesses or schools to assess and manage the risks from Coronavirus (COVID-19) as per this withdrawn guidance.


If a downstream user is contacted about a newly classified SVHC what are their duties to their customers and do they need to inform the HSE under UK REACH?

If a downstream user becomes aware of a newly classified substance of very high concern (SVHC), they need to meet the requirements under this guidance from the HSE. In short, if you supply an article containing a substance that appears on the UK REACH Candidate List in a certain concentration, you must inform the consumers. Also, if you produce, import or supply articles containing SVHCs, you must notify the HSE.


Are defence electrical products exempt from CE marking requirements?

While there are some specific exclusions, in general such equipment does require marking. The manufacturer’s instructions would normally contain information on conformity assessment, it the product is exempt and why. We advise that if you are unsure whether a particular item is exempt that you seek specialist advice.


On the subject of diisocyantes training. I have found training online. Do you have to use this or can you do your own?

Diisocyanates training needs to be conducted by “an expert on occupational safety and health with competence acquired by relevant vocational training” as per the training instructions in the Annex to Regulation (EU) 2020/1149. Therefore, you can do it yourself as long as you meet those requirements.

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