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Trilogue Meetings Begin, to Negotiate Final Text of Proposed Directive on Single Use Plastics

The proposed Directive concerns products which are wholly or partly made from plastic, where these are neither designed nor conceived to accomplish multiple rotations – in the sense of being returned for re-use or re-filling – within their life-span. In light of the EU’s January 2018 Plastics Strategy with respect to plastic marine litter, the proposed Directive only covers the presumed “top ten” most commonly found plastic products that are littering European beaches. Notably, the proposal envisages banning single use plastics for which alternatives are available on the market, such as cotton buds and plastic cutlery, plates and straws. Hong Kong exporters and manufacturers should note that the Commission’s proposal does not define a minimum plastic content threshold below which products may be exempt.

Traders should further note that the future Directive is not intended to apply to unmodified natural polymers where these occur naturally in the environment. While the Commission’s initial proposal excluded from the scope certain polymeric materials that are not capable of functioning as a main structural component of final materials or products, i.e., polymeric coatings, paints, inks and adhesives it seems that coatings may well fall within the scope of plastic products covered by the future law (see: the Council’s position on this below). This matter will become clearer after the ongoing negotiations.

In order for the Commission’s proposal to become legally binding, the European Parliament and the Council of the EU have to agree on the same amended text in the course of negotiations. Prior to this, each institution agrees internally on a list of amendments that constitutes its negotiating position.

The Parliament’s position advocates for expanding the list of banned plastics to include ultra-lightweight plastic bags, oxodegradable plastics and food containers made from styrofoam (i.e., takeaway containers made from expanded polystyrene). Further to this, the Parliament clarifies the principle of extended producer responsibility (including the “polluter pays” principle), emphasising that financial contributions for the collection of waste are to be based on new guidelines to be published by the Commission.

With this in mind, the Council’s negotiating position largely confirms the proposals put forward by both the Commission and the Parliament thus far. Furthermore, the Council proposes to reduce consumption of paper plates with plastic linings until 2023 and to add expanded polystyrene cups for beverages to the list of items subject to market placement restrictions.

That said, the European Parliament's demand for a mandatory minimum of 35% recycled content for plastic bottles from 2025 is said to be met with opposition from the Council.

The Council’s position also addresses doubts raised by those representing plastics manufacturers as to the difficulty of implementing ambiguous concepts such as “single use” plastics without clear definitions. To this end, the Council proposes to clarify that “single use” products are “typically intended” to be used just once, or only for a short period of time before being disposed of, and that such items should tend to be frequently littered. Specifically, the Council calls on the Commission to publish guidelines, in consultation with Member States, on examples of what is to be considered a single use plastic product.

More controversially, the Council proposes to strengthen the Commission’s proposals for extended producer responsibility, implementing “ambitious” schemes which would impose an obligation on producers to cover clean-up costs and the costs of awareness-raising measures, including for products such as wet wipes and balloons, where no such obligation currently exists. Furthermore, Hong Kong traders should know that the Council proposes to extend the Commission’s proposal that producers of plastic items cover the costs of cleaning plastics litter to companies which import or sell single-use plastic products or packaging in Europe.

However, Hong Kong traders will be pleased to know that the Council has stressed the need for proportionality in calculating a methodology for the costs of cleaning up litter, encouraging Member States to set annual or multi-annual financial contributions to clean-up costs. This is a welcome development, following concerns voiced by trade association PlasticsEurope as to the proportionality of the Commission’s proposals, noting that producers “do not have the means to solve the litter problem alone”, but need “help from other stakeholders”, including private/public waste operators and local authorities.

The speed with which the legislative procedure on this dossier has been moving is virtually unprecedented, especially for a proposed legal act of this magnitude (affecting, by means of multiple provisions, a vast array of product-types placed on the EU market). Yet, the act is a highly political one, with the European Commission and Parliament wanting it to be adopted well before the parliamentary  elections set for the end of May next year. Therefore, it is expected that the Council and Parliament (with the European Commission’s mediation) will decide on an acceptable text very soon. A second trilogue meeting, where the final text could well be decided, is scheduled for 28 November.

Content provided by Picture: HKTDC Research
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