UK: New data reporting requirements for packaging producers under EPR regime

The Packaging Waste (Data Reporting) (England) Regulations 2023 (the “Data Reporting Regulations”) came into force on 28 February 2023 and aims to support the UK government’s commitment to tackling excessive waste and addressing  the lack of recycling and collection infrastructure in England, by legally requiring packaging producers in England to collect information on the amount and type of packaging they supplied in a calendar year (January to December). The data will then be used to calculate the fees that producers will be required to pay to cover the costs of managing their packaging.

Under the Data Reporting Regulations, packaging and packaging waste includes materials such as aluminium, fibre-based composite materials, glass, paper, board, plastic, steel, wood or any material that is used to cover or protect goods to be sold to consumers to make handling goods safer and look more appealing for sale.

On 20 April 2023, the Packaging Waste (Data Reporting) (England) (Amendment) Regulations 2023 (the “Amending Regulations”) were laid before Parliament for approval. The purpose of the Amending Regulations is to ensure that packaging producers submit all the required information for the calculation of their 2024 obligations and to remove any potential loopholes. The key amendments relate to the scope of “producer”, the collection and reporting of data as well as offences and penalties under the Data Reporting Regulations. The Amending Regulations will come into force on 30 June 2023, or if later, will come into force on the day after the day on which they were made. However, the changes in the Amending Regulations do not affect the information set out in this briefing.

While the Data Reporting Regulations and Amending Regulations apply to England only, this new legislation is part of a wider reform of the extended producer responsibility for packaging regime (the “EPR”) in the UK. The EPR is  a UK-wide policy that will be phased in from 2024 and builds on the existing packaging waste regulations and aims to place on producers the full responsibility and costs of dealing with packaging throughout its life cycle. The existing regime is set out in the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 (as amended) and the Packaging (Essential Requirements) Regulations 2015, which implemented the EU Packaging and Packaging Waste Directive 94/62/EC and are now retained EU law after Brexit.

Who needs to take action?

The Data Reporting Regulations apply to “producers”, which are defined as brand owners, packers/fillers, importers, distributors, online marketplace operators, service providers, and sellers, that are established in England.

What are the new obligations? 

Different requirements apply to small and large producers, and are more onerous for the latter, requiring more detailed data collection, retention and reporting as well as reporting to the Environment Agency semi-annually. The data collected must also be retained for 7 years after the end of a data collection period.

The classification as “small” or “large” depends on a producer’s annual turnover in the most recent annual accounts and the amount of packaging supplied or imported in the relevant calendar year. For example, a producer is classed as “large”, if: (i) it has an annual turnover of £2 million or more; and (ii) is responsible for supplying or importing more than 50 tonnes of empty packaging or packaged goods in the UK. For both small and large producers, a penalty charge may need to be paid if a producer misses its reporting deadline.

Whether a producer reports from 1 January 2023 or 28 February 2023 depends on the availability of the required data. If a producer does not have all the required data recorded from 1 January, it must report all of its data from 1 March 2023. If the producer reports data that covers a period starting from 1 March, this will be used to calculate a full year’s worth of data.

However, where a producer is a member of a registered scheme throughout a relevant year, the producer is exempt from its data reporting obligations for the relevant year.

Nation data

Small and large producers who are “sellers” that sell secondary or tertiary packaging, meaning either a number of packaging sales units (whether supplied to the final user or consumer and which do not affect the product’s characteristics), or packaging which facilitates handling and transport of secondary packaging (but excludes road, rail, ship, and air containers) respectively, must submit additional “nation data”. This is information about which nation in the UK packaging is both supplied and discarded in.

Both large and small producers need to submit nation data for the 2023 calendar year by 1 December 2024, provided that: 

(i) the producer must report on its data under the Data Reporting Regulations; and 

(ii) the producer:

• supplies filled or empty packaging directly to customers in the UK, where they are the end user of the packaging;
• supplies empty packaging to UK organisations that are either not legally obligated, or are classed as a small organisation;
• hires or loans out reusable packaging;
• owns an online marketplace where producers that are based outside the UK sell their empty packaging and packaged goods to UK consumers; or
• imports packaged goods into the UK for its own use and discards the packaging.

Further changes being introduced by the EPR reform 

In addition to the requirements under the Data Reporting Regulation, the wider EPR reform seeks to introduce further requirements for small and large producers, including:

• creating an account for the producer from July 2023;
• paying a waste management fee;
• paying scheme administrator costs;
• paying a charge to the Environment Agency; and
• obtaining a packaging waste recycling note or a packaging waste export recycling note from accredited re-processors as evidence that packaging waste has been recycled to meet the producer’s obligations.

Special rules apply to parent companies and their subsidiaries to facilitate the data collection and reporting obligations for groups. According to government guidance, parent companies and their subsidiaries can register:

• as a whole group, in which case the parent group would need to report on the packaging data on behalf of every subsidiary in the group;
• as individual subsidiaries, in which case each subsidiary that meets the threshold for small companies would be required to collect and report on its EPR data; or
• as a parent producer for only part of the group, in which case the parent producer registers to comply with the EPR on behalf of some of its subsidiaries.

Separately, following on from the government’s announcement in early 2018 that it was committed to developing a deposit return scheme for drinks containers (the “DRS”) and multiple rounds of consultations with industry stakeholders, the Department for Environment, Food & Rural Affairs (Defra) recently published its response, which includes updates regarding the size of containers, materials in scope and potential labelling of in-scope containers. The current proposal is for the DRS to be in force by the end of 2023, with a commencement date of 1 October 2025. However, the feasibility of this timeline is subject to further consultation and work with key industry players – so stay tuned.

In addition, producers may soon be required to implement unambiguous labelling of recyclability to make it easy for consumers to recognise recyclable packaging. Following consultations, Defra has agreed with the Waste and Resources Action Programme to use the “Recycle Now” recycling mark and require all packaging types (except for plastic film, flexibles, compostable and biodegradable plastic packaging) to be labelled as “recycle” or “do not recycle” by 31 March 2026. Plastic film and flexibles will need to be labelled “recycle” or “do not recycle” by 31 March 2027, while compostable and biodegradable plastic packaging will not need to be labelled “do not recycle” until the relevant infrastructure can be improved and to allow for further evidence gathering to consider whether the disposal of compostable packaging via composting under industrial conditions can be labelled as recycling.

Separately, the government has said it plans to bring forward measures to end the sale of wet wipes containing plastic, subject to consultation, and is writing to the advertising authorities and producers about using the word "flushable" in wet wipes. Legislation on this is expected to come into force in 2024 and is part of the broader Plan for Water strategy.