Ecosurety response to the draft Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024 consultation

Introduction

The draft 'Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024', once passed, will repeal the 'Packaging Waste (Data Reporting) (England) Regulations 2023' and the 'Producer Responsibility Obligations (Packaging Waste) Regulations 2007' that are currently in force.

A consultation on the 2024 regulations was released by Defra on 29 July 2023 and asks whether the draft regulation makes clear to stakeholders the various obligations under packaging Extended Producer Responsibility (EPR). Whilst much of the drafting is understandable, there are nonetheless several examples outlined below where we believe producers and other actors in the system would not be able to clearly grasp the intention of the regulations.

The consultation closes on 9 October 2023 and you can view and respond to it here on gov.uk. Government have stated that they will consider the responses to the consultation and make amendments to the draft regulations as appropriate. Alongside the consultation they will also hold co-design workshops with stakeholders to address the more detailed, technical areas of the draft regulations.

It is important that as many stakeholders respond to the consultation as possible. If you agree with any part of our response, rather than duplicate it, Defra have advised that you can simply reference it in your own response by stating 'We agree with the response to this question by compliance scheme Ecosurety Ltd'.

Our response below begins at question 6, as the preceding questions are used to capture detailed information about the person completing the response.

The Ecosurety response

Q6. Do you agree that we should work towards excluding packaging that is designed only for use by a business from the payment of household disposal cost fees?

Yes.

Ecosurety welcomes the opportunity to respond to this consultation on the Producer Responsibility Obligations (Packaging & Packaging Waste) Regulation 2024. We are fully supportive of a well-designed Extended Producer Responsibility (pEPR) system for packaging that is equitable to both packaging producers and local authorities, whilst incentivising recycling, reuse/refill, and reduction of packaging waste.

Like many industry colleagues however, we believe the current system for allocating packaging as either household or non-household will adversely see producers paying local authority waste management fees on products that will not be disposed of at the kerbside or in public street bins. The current requirement that primary or shipment packaging must be declared as household packaging unless it is being sold directly to a business that discards it, and the producer holds evidence to that effect, in reality will allow obligated businesses to discount very little packaging from their fees. In most cases, packaging supplied by the obligated producer will move through several businesses in the supply chain before being discarded by the final business user. Moreover, there are many primary packaging formats – such as beer kegs and industrial drums – that will never arise in local authority waste streams but will currently have to be reported as doing so.

This represents an additional cost on producers that Ecosurety believes is outside the scope of pEPR. This will be especially pressing in 2024, where data supplied by obligated producers will be used to inform waste management fee setting in 2025. We therefore strongly agree that further work should be done towards excluding more packaging types from tonnages eligible for local authority waste management fees (WMFs). We would suggest that something akin to pEPR systems found in Europe could be considered.

For instance, in the German system, if an article of packaging usually accumulates with private final consumers, this is considered to be 'typical' – in the UK ‘household’. Whether this is or is not the case is assessed against prevailing practice. Objective criteria should be considered, such as the contents of the packaging (who tends to use the goods), the design of the packaging (e.g. its size, closures, dosage aids) and other features (e.g. content volume, material, weight), as well as the typical distribution channel (e.g. retail stores, wholesalers). For example, copy paper packaged in rolls is not subject to system participation because it typically does not accumulate with private final consumers; paper packaged as sheets up to DIN A3 is subject to system participation.

We understand that this represents a significant amount of work on behalf of the regulators, and that it will necessitate analysis of industry supply chains and their typical packaging formats. We would encourage Defra to continue to work with stakeholders to achieve clear protocols to be applied that will result in more equitable and accurate apportionment of fees in 2025.

Obligations on producers

Q7. Do the draft Regulations ensure all types of packaging, which is not exempt packaging, are subject to recycling obligations?

No.

Obligated packaging and producer types

There are examples within supply chains where packaging that is not exempt would not currently be reported. For instance, imported packaging that is sold to a large producer, who in turn sells to a small producer is not currently obligated. This would also be true of manufacturers – ‘distributors’-who are supplying unfilled, unbranded packaging to a large producer who does not go on to pack/fill it but supply it to a producer under the de minimis (Part 1, Regulation 9 (11)). Another example is a brand-owner without a UK presence shipping their products, not via online marketplaces, directly to UK consumers.

Deposit Return Schemes (DRS)

The draft regulations also imply that in-scope containers being sold onto the Scottish market are exempt, and instead liable under the Scottish deposit return scheme (DRS). All drinks containers in a live DRS in the UK should be exempt from waste management fee payment obligations until the DRS’ are implemented in 2025, as fees that would otherwise be paid under pEPR will be likely channelled into pre-implementation costs such as the establishment of the Deposit Management Organisation.

In relation to the above, clarity is sought by producers around drink container obligations considering no official decision has been, to our knowledge, made on what will be in and out of scope of the schemes in each nation. The inclusion or exclusion of glass in each nation needs to be clarified, and ideally aligned, in order for producers to adequately assess their reporting and financial liabilities under EPR and potential DRS implementation in October 2025. This is especially true given, for instance, the different labelling requirements under each system which producers need adequate time to prepare for.

However, in the event for a further delay or withdrawing of plans to establish DRS’ in October 2025 altogether, the regulations should reflect this possibility and make provisions – including in regards to labelling requirements - for in-scope containers to fall under the broader pEPR framework if this eventuality were to occur. Finally, Ecosurety would like to emphasize that in-scope DRS containers should still hold a recycling obligation until such a time as the systems are live. This is to both avoid further fluctuations and market instability in the PRN/PeRN system and avoid inequitable outcomes between those placing and not placing single-use drinks containers on the market.

Q8. Are producers recycling obligations clear?

No.

Recycling targets

It is presently unclear as to whether from 2025 onwards there will be a ‘general’ PRN category and just recycling obligations/PRN obligations attached to aluminium, fibre-based (in 2026), glass, paper, plastic and steel. If there is no ‘general’ category it is ambiguous how the ‘other’ material reporting category will be obligated. Given there will be a new material category – ‘fibre-based’ as mentioned – there is no provision in Schedule 1 Table 1 to attach a recycling target to it, it would be useful to know whether this is because the recycling target will be set at a later year or whether government is no longer intending to do so.

Comprehensibility

In relation to clarity of the regulations, we believe that for affected producers to fully understand their obligations, the legislation could be formatted in a more readable way. For instance, throughout the draft document when another regulation, paragraph or schedule is referred to it is cited by its number. Citing both the number and the chapter or regulation title would ensure a more comprehensible document, especially given affected stakeholders are likely not experts in navigating and interpreting legislative text.

Although outside the scope of this question we would highlight there is also incidences throughout the regulation of inconsistent terminology which we believe may lead to confusion. For instance, producer compliance schemes are in various parts referred to as ‘schemes’, ‘compliance schemes’, and ‘OCS’.

In relation to specific regulations

Part 1, Regulation 19 outlines the obligations on packaging that falls within a licensing or franchising arrangement. We do not believe this regulation outlines clearly how licensors and their licensees should report and/or pay WMFs on packaging within this arrangement.

For instance, as we understand it, if packaging within the licensing agreement is branded by the licensor then the obligation would revert to the head-organisation. This would leave the licensee with only an obligation to report nation of sale data on that packaging, and an obligation to report and pay WMFs on any other packaging within the agreement that is, for instance, unbranded (if they are over the small producer threshold) or packaging outside the agreement that they are obligated for. We believe an arrangement such as the above would be highly confusing to obligated businesses and would urge that these conditions are simplified. For instance, there could be provisions in the draft legislation that, if agreed by both parties, the head organisation or licensor may report nation of sale data on the licensee’s behalf.

Schedule 4, Part 2 (6) outlines the information required from large producers. We are unclear as to why brand-owners are exempt from supplying a breakdown of the packaging supplied in each packaging category, but all other large producer types are not.

Q9. Are the obligations on each type of producer clear?

No.

Producer activities and points of compliance

There are aspects of the draft regulation in relation to producer obligations that we believe will be confusing to affected businesses, and examples where obligations are unclear. For instance, in the case of a service provider importing reusable pallets, who in turn rents them to a company that uses them to import and export goods. In this scenario the regulations do not make clear who the obligated producer is. Please additionally consider this scenario in relation to question 7.

Furthermore, although we understand current guidance is based on The Packaging Waste (Data Reporting) (England) 2023 Regulations (‘Data Regulations’) currently in force it nonetheless states that if packaging is imported on behalf of a UK-based brand-owner, the obligation reverts to that brand-owner, whereas in the current Producer Responsibility Obligations (Packaging Waste) Regulations 2007 (‘PRN regulations’) it is stated the point of responsibility rests with the business taking ownership of the packaging. It would be useful to clarify in the legislation under consultation whether this still applies.

As another example of where these obligations are unclear, an importer takes ownership of branded packaging and resupplies it as a sale back to the brand-owner once at the distribution centre. In this scenario, it is unclear whether the initial importer is obligated as such, or whether they have imported the packaging ‘on behalf of’ the brand owner. It is important that obligated producers are clear on their responsibilities under the regulations for effective supply chain communication and to increase the operability of pEPR.

As far as we are aware, the responsibility for pack/fillers to pick up the obligation for small producer brand-owners they supply to is a new introduction to the pEPR scheme design. It is important that producer obligations under the single point of compliance are communicated effectively ahead of regulatory change. Given there will be reports made in 2023 and 2024 under the Data Regulations currently in force, changes resultant from the legislation currently being consulted on to producer points of obligation will mean additional reporting, data gathering and financial requirements which will likely lead to a greater misunderstanding of the system.

In relation to specific regulations:

Part 1 Regulation 9 (8) states the importer is liable ‘where the brand-owner is not responsible for the import of the packaging’, a regulatory definition of ‘responsible’ should be made clear. If this is not possible within the scope of this legislation, guidance is needed to ensure importers and brand-owners are clear on the points of responsibility.

Part 1 Regulation 11 - it would be useful to confirm and make clearer the intention of this regulation. Is the intention that a ‘distributor’ is not obligated if selling unfilled packaging to a brand-owner or packer filler once the packaging is filled, but an online marketplace is still obligated if they do the same.

Part 1 Regulation 9 (14) states a seller is a ‘seller of filled packaging to the final user of that packaging’. This is at odds with government/ Environment Agency (EA) guidance where it is stated producers who are obliged to submit nation of sale data are those who are supplying ‘filled or empty’ packaging: directly to consumer; supplying empty packaging to UK organisations that are either not legally obligated, or are classed as a small organisation; hiring or loaning out reusable packaging; own an online marketplace where organisations based outside the UK sell their empty packaging and packaged goods to UK consumers; importing packaged goods into the UK for your own use and discard the packaging.

We believe the draft regulation should make it much clearer that the listed activities will also trigger the requirement to submit nation of sale data, if that is government’s intent, and it is especially important that they clarify whether this data requirement relates to packaging sold just to consumer end-users, or to those acting in the course of business too.

Producer type definitions

The legislation under review states ‘brand’ means a brand-name, trademark or other distinctive mark. A regulatory definition of ‘distinctive mark’ is needed. It is also important to clarify what definition producers should be using to distinguish brand names from trademarks.

The regulations make clear that ‘sellers’ are those liable to submit annual nation of sale data. However, given ‘sellers’ will not necessarily be obliged to report packaging data into the main pEPR framework and will have no financial obligations given they are not performing any other packaging activities, it would be clearer if this differentiation is highlighted formally in the legislation to avoid confusion. Moreover, the naming of this producer category as ‘sellers’ may be misleading and lead to businesses assuming this obligation only relates to retailers. Making it clear that it relates to ‘sellers of packaging to end-users’ would be beneficial.

Q10. Are the obligations on all types of packaging clear?

No.

Packaging definitions

There is notable confusion around the definition of shipment packaging that we feel could be made clearer in these draft regulations. Many producers may report tertiary or transit packaging as shipment packaging simply due to the nature of the terminology. Instead, we would recommend this packaging is termed ‘e-commerce packaging’ akin to the proposed European Commission Packaging and Packaging Waste Regulations, and the reporting guidelines for this clearly defined.

It is also unclear whether the intention is that packaging typically classed as tertiary/ transit packaging (such as a pallet) should be classed as shipment packaging if they are in some instances being sold directly to a consumer via internet or telephone sales, or whether this packaging category has a more limited scope and just related to, for instance, outer packaging and envelopes from sales on online marketplaces.

In relation to specific regulations:

In relation to brand-owner obligations Part 1 Regulation 9 (2) states ‘unless paragraph (7) applies, and subject to paragraph (5), a brand owner is a producer in relation to - …(b) any part of the packaging contained within, or forming part of, branded packaging (whether or not that part of the packaging is branded).

The same regulation paragraph (5) states where different individual branded products or unbranded products (or both) are grouped together to be sold as a single sales unit –

(a) the brand owner for an individual branded product within the sales unit is a producer in relation to the packaging on that individual product;

(b) the packer/filler is a producer in relation to any unbranded packaging within the sales unit which is filled by the packer/filler.

These could be interpreted as being contradictory or unclear in that ‘any part of the packaging contained within, or forming part of, branded packaging (whether or not that part of the packaging is branded) is the brand-owner’s obligation and in (5) ‘where different individual branded products or unbranded products (or both)’ are the individual brand-holder’s or pack/filler’s (if unbranded) obligation could be interpreted as different obligations for the same scenario. It would be useful if the draft regulations made this clearer to avoid different interpretations by obligated businesses.

Part 1 Regulation 9 (13) it would be helpful if a regulatory agreed definition of ‘reusable packaging’ was available in the legislation.

We believe the draft legislation would be clearer if when referencing ‘off-set’ (for instance Part 6 Regulation 63 (2-4)) it was made explicit that this relates to the ‘self-managed consumer waste’ packaging type only – i.e. that the packaging ‘which LP has collected and sent for recycling at LP’s cost’ is the same as the ‘total CW for each material’.

Schedule 4, Part 2 (3-6) it is unclear how packaging associated with drinks containers should be reported, such as closures/lids, labels, any other packaging e.g. the aluminium foil covering and steel muselet over a champagne cork. In the interpretation of “drink container” in regulation 2,, it states that lids/closures and labels should be classed together with the containers, but it is unclear how the lids/closures/labels should be reported if they are a different material to the drink container. E.g. a PET plastic container with a HDPE lid and paper label. Or a glass container with a cork closure, aluminium foil covering and steel muselet. The reporting specification under the 2023 Data Regulations does not specify how these different materials should be reported either.

Q11. Are there any areas in which two producers may be obligated for the same item of packaging?

Yes.

There are several scenarios where packaging data may be reported and waste management fees paid twice by different producers in a given supply chain. We believe many of these instances could be avoided by clear guidance surrounding which producer activities trigger obligations under pEPR, when those obligations default to another obligated producer (for instance an importer supplying packaging on behalf of a brand owner), and exactly what packaging underneath those obligations need to be reported (for instance a packer filler using unbranded transit packaging around another brand’s goods).

It would be additionally helpful if the regulations made explicit whether there is a ‘hierarchy’ in relation to the single point of compliance. For instance, an importer sells unbranded packaging to another business that pack/fills it, both of whom would believe the obligation to report and pay waste management costs lies with them. If this were made clear within the draft legislation, it would help obligated producers both in their reporting responsibility and in communicating with their supply chain.

In many supply chains, there will be a number of businesses involved with the import of a given product and its related packaging. We believe, as outlined in our answer to question 9, that the legislation should be made clearer in regard to where this responsibility sits. Pertaining to the Plastic Packaging Tax, guidance and regulations make it explicit that arrangements such as Incoterms (for instance Free On Board) can be used to determine liability and ownership of the packaging once it has cleared customs. We would recommend similar clarification is outlined in these draft regulations to reduce the incidence of two businesses assuming the obligation for the same packaging.

In relation to specific regulations:

Part 2 Chapter 1 (17) states small producers must report on ‘all packaging in respect of which SP is a producer in accordance with Regulation 9’. As stated in Regulation 9 large producers – such as distributors of empty packaging to small producers who in turn, for instance, pack fill it and become obligated under that activity – are obligated to report and pay costs on their behalf. The regulations suggest that this packaging, therefore, would be reported on twice and obligated twice, albeit financially only once. We are unclear as to how, if data is reported on a given piece of packaging twice, this will be accounted for and differentiated so as not to skew UK-wide placed on market and recycling figures. It would be helpful if this was made clearer in the draft regulations.

Another example in Part 1 Regulation 9 where it is stated that:

‘(2) Unless paragraph (7) applies, and subject to paragraph (5), a brand owner is a producer in relation to— (a) filled packaging on which that person’s brand appears; and…

(8) An importer is a producer in relation to any filled packaging imported into the United Kingdom by the importer which is— (a) secondary packaging or tertiary packaging, or…’

This implies that both the brand-owner and the importer would be obliged to report the branded tertiary packaging.

Compliance schemes

Q12. Is the relationship between a Packaging Compliance Scheme and its members clear?

No.

Much of the Parts 3, 4 and 5 of the draft regulations are clear.

We are aware the question relates to the relationship between producer compliance schemes (PCS) and their members, however to ease administrative burdens within that relationship we would disagree that only one approved person per obligated producer has the ability to delegate authority and approve packaging data submissions, as is currently the case on Defra’s ‘Report my Packaging Data’ service. This increases the risk of late submissions of data and/or administrative errors and burdens. We believe the regulations should be amended to allow more than one approved person per obligated business.

In relation to specific regulations:

Part 4 Chapter 2 Regulation 46 states that an obligated producer submitting data through their compliance scheme must do so in ‘such form as the appropriate agency directs’. A great part of compliance schemes’ value is facilitating the submission of packaging data from the producer to the agencies in line with legislative deadlines and the required specification and accuracy, and as such develop their own client-facing data services. These are often not in the same format (e.g. comma-seperated-value) and compliance schemes will convert them to the required specification, we believe the regulations should be amended to reflect this.

Part 3 Regulation 32 (2) makes clear that a producer relinquishing membership of a PCS mid-compliance year then “P must comply with P’s recycling obligations for that year”. The definition of recycling obligations elsewhere in the draft legislation makes clear that this means the obligation to buy recycling evidence, but not submit packaging data under the reporting requirements and therefore pay WMFs. To make the regulations clearer we believe this should be amended.

Q13. Are the obligations that a Packaging Compliance Scheme assumes on behalf of its members clear?

No.

Recycling targets

Under Schedule 1 (3) Table 1 proposed future recycling targets are outlined. Whilst it is useful to have long-term targets, we believe there should be flexibility built into the draft legislation so that targets can be regulated for in the shorter term in cases of unforeseen circumstances such as critical material shortages.

Conditions of approval of a compliance scheme

Part 3 Regulation 34 (2) outlines that a compliance scheme, that has not met its recycling obligations in the previous year, is subject to ‘the following additional conditions’ for approval:

OCS complies 50% of its total recycling obligations before 30 June

OCS complies with 75% of its total recycling obligations before 30 September

We disagree with this additional condition of approval – particularly as issuers of recycling evidence or reprocessors/ exporters are not obliged to sell evidence in the same manner. This condition could cause even larger fluctuations in the PRN/PeRN market and disrupt pricing and evidence availability particularly if a large PCS was to be subject to re-approval, and should not be an additional condition of scheme approval. We are aware that this condition is an aspect of the current ‘PRN regulations’, but given the changes to PCS operations and evidence buying since 2007 we do not believe this is now relevant or appropriate.

Provision of recycling information and labelling

Q14. Are the requirements for the provision of recycling information and packaging labelling clear?

No.

Packaging formats

We agree with the exemption in the draft regulations for packaging less than 25 square millimetres. However, many producers will also have obligations under other labelling legislation such as that in the European Union, and do not have the capability to manufacture separate packaging formats by nation. It would be useful if this were considered and guidance issued accordingly.

Although the draft regulations make clear that primary and shipment packaging formats come under the labelling requirements, they do not make clear how packaging included in take-back arrangements, that is self-managed by producers, or that cannot be recycled from the kerbside but can be if disposed of elsewhere will interact with this requirement. To this end, it is also unclear whether the definition of recyclable under arrangements of ‘self-managed consumer waste’ referred to elsewhere in this document (that it is collected for recycling by over 75% of local authorities) will be applied, or whether the assessment relates to if the packaging can technically be recycled.

Binary labelling requirement

We are supportive of a mandatory, binary labelling approach and agree that it will alleviate consumer confusion and contribute toward better recycling rates, we are concerned that an overly prescriptive approach could have converse outcomes. This is particularly true in government’s stated aim to incentivise and increase the use of reusable or refillable packaging. Therefore, we are pleased to see outlined in Regulations 23 and 24 that there is flexibility within the regulations for the labelling of reusable and refillable packaging, alongside other OPRL formats such as ‘Recycle with bags at large supermarkets’, so as not to disincentivise recycling and reuse routes other than those managed by local authorities.

Timing of obligation

We are aware that specific dates have been intentionally omitted from the draft regulations as their passing is conditional on a number of factors. However, given the decision to delay the charging of local authority WMFs until October 2025, it is imperative obligated producers are given a clear date for the introduction of this labelling obligation as soon as possible. The lead-in times to changing packaging labelling formats, and the costs associated with it, require at least a year to implement any changes.

In relation to specific regulations:

Part 2 Chapter 2 Regulation 22 (2) states that producers obligated under this regulation must ensure ‘any primary packaging and shipment packaging they supply is labelled, or information on the recyclability of that packaging is otherwise provided’. It would be useful to clarify how producers may otherwise provide information on recyclability.

Recyclability assessments

Q15. Are you likely to use a third-party organisation to conduct packaging recyclability assessments?

N/A.

Q16. If you answered yes to Q14, should there be a mandatory accreditation scheme for third-party organisation(s) who undertake recyclability assessments?

Yes.

Ecosurety fully supports the proposal that any third party organisation carrying out recyclability assessments be mandatorily accredited by the UK Accreditation Scheme (UKAS).

Scheme Administrator establishment

Q17. Are the functions of the Scheme Administrator as outlined in the draft Regulations clear?

Unsure.

Scheme Administrator calculation of producer disposal and administration fees

Q18. Do the draft Regulations allow for the Scheme Administrator to accurately apportion fees to producers?

No.

Local authority performance

Part 6 of the draft legislation makes clear that reasonable costs for effective and efficient packaging waste services will be reimbursed via pEPR and the associated producer fees. However, we are concerned that the legislative basis on which the Scheme Administrator (SA) determines local authority efficiency or effectiveness is unclear. For instance, whilst the obligation for packaging producers to submit detailed data on their placed on market figures is clearly outlined in both the 2023 Data regulations in force and the draft legislation under consultation, we believe there is less legislative detail on the requirements for local authorities to submit corresponding information on their packaging waste activities. We believe this may undermine the activities of the scheme administrator and could lead to inequitable outcomes for packaging producers. The draft legislation should set out and define what information local authorities should submit to the scheme administrator that demonstrates an efficient and effective service, and how often they should do so.

In relation to specific regulations:

Part 6 Chapter 2 Regulation 62 (4) describes the additional cost for producers reporting under ‘commonly binned packaging’. It would be clearer if this were defined and the scope of the additional costs outlined. This is especially true as this is a cost in addition to the WMFs charged if the items were reported as household packaging.

Part 6 Chapter 2 Regulations 57-66 make reference to sustainable packaging which is undefined in the draft legislation. Although we are aware this may fall to the scheme administrator, and will necessarily evolve over time, it would be useful if the regulations outlined the factors that will be considered when assessing ‘sustainability’ in order for affected producers to do the same. This is especially true as the sustainability of the packaging forms the basis of the modulation for WMFs.

Q19. If your organisation collects and recycles packaging waste, do you understand if you would qualify for off-setting under the draft Regulations?

No.

Ecosurety does not directly collect and recycle packaging waste. However, we believe it should be made clearer within the draft regulations that ‘off-set’ essentially relates to ‘self-manged consumer waste’ as set out in the data reporting regulations and discussed elsewhere in this consultation response, and that it is only relevant for packaging collected for recycling by less than 75% of local authorities, and to packaging materials the relevant producer has reported as supplied on to the market.

Collective takeback

Collective arrangements to take back and recycle hard to recycle materials, such as the Flexible Plastic Fund managed by Ecosurety, need to be accounted for in the draft regulations. It is not clear in the legislation whether in these circumstances, whereby multiple brand-owners part-fund the collection and recycling arrangements, this tonnage can be netted of WMF liability and how this could be adequately evidenced between the participating businesses. Clarity regarding this is needed as agreements akin to the Flexible Plastic Fund are expensive operations, and given they are voluntary agreements undertaken to improve collection and recycling ahead of legislative change, it seems inequitable that those producers would essentially be double charged on this material.

In relation to specific regulations:

Part 6 Chapter 2 Regulation 63 (1) outlines for the purpose of ‘off-set’ calculations the relevant producer must hold evidence that the packaging has been recycled. It is important that these evidence requirements are made clear as soon as possible. As far as we are aware there is currently no guidance available as to what evidence is acceptable to the regulators and the scheme administrator.

Q20. Do you think the offsetting provisions should be extended as part of future reforms to EPR?

Yes.

Ecosurety believes there should be opportunities to off-set WMFs where producers are transparently self-managing any class of packaging waste. Extending the scope of this will encourage and incentivise more producers to self-manage hard to recycle packaging waste and in turn help deliver the environmental outcomes sought by pEPR. We would emphasize this is especially pertinent in relation to operational reusable and refillable packaging systems, the increased uptake of which is a stated aim of government.

In this regard we are very pleased to see in the draft legislation that under Schedule 4 Regulation 14 (5) that reusable packaging that has been used at least once and has become waste can be off-set the producer fees – but believe this should also apply for reusable packaging solutions producers manage under ‘binned waste’ items. The same schedule goes on to outline that producers must hold evidence that self-managed consumer waste has been recycled in order to achieve the criteria for offset, but there does not appear to be the same evidential requirements for those demonstrating reusable packaging solutions.

We believe the legislation should allow for, with clear conditions and evidential thresholds, the offsetting of WMFs if producers can demonstrate they are operating a working refillable packaging scheme or offering reusable packaging formats. We believe the current scope for producer fees to be lessened under self-managed consumer waste as discussed elsewhere is this response is too narrow, and that greater incentivisation of sustainable packaging formats and collection arrangements could be gained by widening it.

Q21. Do the draft Regulations provide appropriate safeguards for compliant producers, including with regards to the impact producer non-compliance may have on producer disposal fees?

Not sure.

As we understand the regulations Part 6 Chapter 6 Regulation 81 makes provisions for the scheme administrator to adjust and recalculate WMFs if there is ‘likely to be a material difference between the amount of the annual disposal fee [that] was first assessed as being liable… and that amount as recalculated’ if it receives ‘further information’ in relation to placed on market figures, or further information on the number of liable producers. Whilst we agree and understand that the spending reported by local authorities on managing packaging waste will be a set figure in a given payment period, if the amount of registered large packaging producers is reduced due to (for instance) free-riding or other factors, this should be accounted for by the scheme administrator to avoid disproportionately affecting those businesses who are registered. We believe this could be mitigated by communication and effective enforcement of the pEPR legislation.

Scheme Administrator’s calculation of disposal costs and scheme administrator costs to be recovered from producers

Q22. Do the draft Regulations make it clear what the Scheme Administrator is required to do and consider in assessing local authority efficient net disposal costs and service effectiveness?

No.

Ecosurety believe the draft regulations should stipulate more specifically the assessment criteria in relation to local authority ‘net efficient disposal costs’. This would serve to increase transparency of producer WMFs.

As we understand it under Regulation 74 where the scheme administrator has sufficient data to make the effectiveness assessment, they should in turn consider factors such as (under Regulation 75 (1)) population type and density, deprivation etc. We would advocate that local authorities are mandated to supply this information on a regular basis so that the lesser performing authorities can be identified and the scheme administrator can consistently apply effectiveness assessments with the requisite information. We also believe this a more equitable approach given packaging producer funding and data submission requirements. We believe this information would already be known to local authorities as it is information they are mandated to hold under other UK legislation.

In relation to specific regulations:

Part 6 Chapter 3 71 (1) describes the disposal costs incurred by local authorities that are within scope to be paid by obligated producers. One of those is the ‘costs to the authority of providing public information…including the costs associated with both the planning and the execution of any information campaigns’. Although we are aware that producer waste management fees should cover the above, we believe controls should be in place as to the frequency, expenditure and scope of these campaigns to avoid unreasonable overspending.

Q23. Do the draft Regulations make appropriate provision for how the Scheme Administrator will incentivise the delivery of efficient and effective packaging waste management services by local authorities?

No.

Ecosurety agrees that if a given local authority has been assessed as not providing an efficient and effective packaging waste management service, the scheme administrator has the power to reduce their funding by no more than 20%. We believe this percentage is punitive enough to incentivise efficient service provision, without being overly detrimental to a local authorities’ cash flow and budgets.

However, we do not think Part 6 and Schedule 5 of this draft legislation ensure local authorities are mandated to provide regular specific information to the scheme administrator to prove their net disposal costs are as efficient as possible, and as such there is no disincentive to continue delivering an inefficient service other than a budgetary reduction of 20%. We believe the regulations should allow, if a local authority is continuously underperforming, for a third-party review and recommended measures for improvement. Given the current uncertainty of consistent recycling collections, or ‘simpler recycling’, it is imperative that local authorities are incentivised and given the resources to effectively manage packaging waste for recycling so the environmental objectives of pEPR are wholly realised.

Q24. Do the draft Regulations make it clear what the Scheme Administrator is required to do and consider in assessing Scheme Administrator public information costs and administration costs?

No.

In relation to specific regulations:

Part 6 Chapter 2 Regulation 65 (4) outlines that when public information campaigns relate only to packaging and packaging waste in certain packaging categories, the scheme administrator may choose to divide the costs of the campaign among only producers supplying packaging in that category. We would argue that this should be a mandatory condition, to avoid disproportionate costs on producers putting more sustainable forms of packaging on the market.

Paragraph (4) of the same regulation states that costs associated with information campaigns relating to litter may only be charged on producers reporting packaging under the ‘commonly street binned’ category – affected producers require certainty in this regard, at the earliest possible opportunity.

Q25. Do the draft Regulations make appropriate provision for how the Scheme Administrator will distribute disposal cost payments to local authorities?

No.

Please see the answers to questions 23 and 24.

Q.26 Do the draft Regulations make it clear how the Scheme Administrator will adjust (modulate) fees to account for the environmental sustainability of household packaging?

No.

We understand that the details and specifics of fee modulation and recyclability assessments are currently being developed by Defra and contracted third parties. It is likely not in the scope of this draft legislation to detail the specifics of this but we would emphasise that average fees per material, and details of assessing packaging recyclability are outlined to producers at the earliest possible opportunity.

In relation to specific regulations:

Part 6 Chapter 2 Regulation 67 (2) outlines what must be included in the scheme administrator’s notice of liability to producers concerning waste disposal costs to be paid. It would be clearer to liable producers if the annual disposal fee due was broken down by material and packaging type, so producers can get a clearer idea of the fee modulation and make changes toward more environmentally sustainable packaging.

Q27. Do you have views on any materials that should be exempted from the scope of modulating fees?

Yes.

We do not believe any materials should be exempted from the scope of modulating fees. The regulations should be written as such to be as flexible as possible, and future-proofed to apply to any novel material or packaging formats that may appear on the market in the future.

Recalculation of costs and fees

Q28. Do the draft Regulations provide the necessary grounds to allow the Scheme Administrator to recalculate the costs and fees?

Unsure.

Q29. Do the draft Regulations set out clearly the process the Scheme Administrator must follow in making fee and cost recalculations?

Unsure.

Without detail of the eco-modulation and recyclability assessment criteria we do not feel this question can be properly answered at this stage. However, the draft legislation appears to be clear in its stipulations around the recalculation of costs and fees. We would refer to our answer in question 23 that local authorities should be required on a stronger legislative basis to provide detailed information on their collection and disposal services to reduce the chances of in-year recalculations of the fees they are due.

Reprocessors and Exporters

Q30. Are the new registration requirements for reprocessors and exporters handling packaging waste clear?

N/A.

Q31. Are the new conditions and reporting requirements for accredited reprocessors and exporters clear?

N/A.

Appeals

Q32. Do the draft Regulations adequately capture the decisions that can be appealed?

Yes.

Q33. Do the draft Regulations set out an adequate appeals process?

Yes.

Future development of EPR for packaging

Q34. Please raise up to three areas of EPR packaging policy that you would like us to consider in the first review and rank in order of priority.

The assessment of household and non-household packaging. We believe this is work that needs to be carried out in the immediate term, before WMFs are applied to the data submissions under the 2023 data regulations.

The development and publishing of WMFs per material type, eco-modulation criteria and recyclability assessments. It is essential that producers are aware of expected or estimated costs as soon as possible. This is true and related to labelling requirements as well. Lead-in times for setting annual budgets, and changing labelling/packaging formats, are often 1-2 years in advance.

Establishment of the scheme administrator. The draft regulations make clear that the scheme administrator has a very broad remit and will need to be established and operational as soon as possible in order to effectively meet its objectives. Not least to ensure and communicate with local authorities their responsibilities to deliver efficiency and effectiveness in good time.

Conclusion

You can view and respond to the consultation here on gov.uk. It is critical that all views are evenly represented and considered and we encourage all stakeholders of the EPR system to respond to government about the proposed measures. Please remember that if you agree with any part of our response, rather than duplicate it, you can simply reference it in your own response by stating 'We agree with the response to this question by compliance scheme Ecosurety Ltd'.

If you have any questions relating to the government proposals and consultation, please contact your account manager directly or call us on 0333 4330 370 or email info@ecosurety.com.