15 June 2018
Certain Commonly Used Plastic Products to Be Banned, Others to Require Marking and Face Other Measures
On 28 May 2018, the European Commission published its much debated draft law targeting single use plastics (SUPs). The future law will, it is intended, ban a number of frequently used products – such as plastic straws, cutlery and plates – from the EU market, and impose other obligations on plastic goods producers.
Hong Kong’s marketers will be affected in the same way as those from within the EU and elsewhere: the initiative is said to be consistent with the EU's international obligations in the area of trade policy, by ensuring non-discrimination between products produced in the EU and those that are imported.
According to the European Commission, the proposed Directive focuses on the most found macro plastic items on European beaches by count, namely, SUP items and fishing gear. Indeed, the intention of the EU initiative is to focus on the ten allegedly most found SUP items from all marine litter.
Several factors have, it is claimed, led to the current situation, including the wide availability of plastic and a lack of incentives to ensure proper collection and treatment of waste, leading to poor waste management and an inadequate infrastructure.
Hong Kong sellers of commonly used consumer goods may like to know that a “single-use plastic product” is defined as one which is wholly or even partly made from plastic (there is no minimum plastic content threshold below which plastic products may be exempt). Single-use products are defined as those that are neither designed nor conceived to accomplish, within their life span, multiple rotations by being returned for re-use or refilling.
Hong Kong producer-exporters may be relieved to learn that while plastics are defined as polymeric materials to which additives may have been added, unmodified natural polymers fall outside the draft law if they occur naturally in the environment. On the other hand, plastics manufactured with modified natural polymers, or plastics manufactured from bio-based, fossil or synthetic starting substances are not naturally occurring and will, it is intended, be addressed by the future Directive.
On the other hand, certain polymeric materials, which are not capable of functioning as a main structural component of final materials and products, such as polymeric coatings, paints, inks and adhesives, are not to be addressed by the Directive and do not therefore fall within its scope.
The future restrictions for placing SUPs on the market, and obligations imposed on plastic articles suppliers, are laid down as follows:
- Member States will have to take measures to achieve a significant reduction in the consumption of single-use plastic food containers (such as boxes or receptacles for fast food), and cups. The measures could comprise, e.g., reduction targets, or charges (such as is currently being incurred for plastic bags in some EU countries).
- On the other hand, it is proposed that the following SUPs will be entirely prohibited: cotton buds, cutlery (including chopsticks), plates, straws, beverage stirrers and balloon sticks.
- In the case of beverage containers such as bottles: their caps and lids (with a significant part made of plastic) may be placed on the market only if the caps and lids remain attached to the container during the product’s intended use stage. Metal caps or lids with plastic seals will not be considered to have a significant part made of plastic.
- The following products must bear a conspicuous, clearly legible and indelible marking addressing consumers on, e.g., the need for appropriate disposal: sanitary towels (pads), wet-wipes and balloons distributed to consumers.
- For the following SUPs, producers will have to subscribe to national extended responsibility schemes, bearing the costs of waste management, including of collection: food containers, packets and wrappers, beverage containers (such as bottles), cups, tobacco products, wet-wipes, balloons and lightweight carrier bags. Moreover, beverage bottles will face a 90% separate collection rate by 2025.
- Finally, awareness raising measures will have to be laid down by Member States for a number of SUPs. These comprise food containers, packets and wrappers, beverage containers (such as bottles), cups, tobacco products, wet-wipes, balloons, lightweight carrier bags, and sanitary towels as well as tampon applicators.
Hong Kong traders may wonder why the proposed Directive covers only the alleged top ten most found litter items on Europe’s beaches and not other plastics. The draft measure is, in fact, intended to be part of an overall integrated European approach to tackle all sources of plastic marine litter as detailed in the Commission’s Plastics Strategy dated 16 January 2018. Additional measures are being planned. For example, the European Chemicals Agency is aiming to have in place EU restrictions on microplastic particles intentionally added to mixtures, such as cosmetics, and the use of oxo-degradable plastics. Measures are also under preparation for microplastics not intentionally used in products but generated during their use, such as from tyres and textiles.
The proposed Directive on SUPs is still at a relatively early stage in the legislative procedure. Any party wishing to take part in the stakeholder process, including those hailing from Hong Kong, can respond by providing feedback on the proposed Directive and the Commission’s accompanying impact assessment. The feedback period will close on 24 July 2018. For more information on this process, and in order to view the draft Directive and its Annex (setting out the myriad legal provisions), please click on the Commission’s website for the relevant materials.