There is currently a great deal of discussion and debate about Packaging Extended Producer Responsibility (pEPR), but packaging waste regulations and the obligations on food manufacturers are nothing new. In fact, they have been around for almost 30 years.
Historic breaches
Packaging regulations are complex, and it can be hard for companies - particularly smaller companies without specialist resource - to determine whether the business operations are caught by the regulations and if there is a need to comply – that is, if there is even awareness that the regulations exist.
The risk of enforcement action from the Environment Agency (EA), as regulator, can date back to packaging waste legislation¹ introduced in 1997 – with investigations sometimes triggered by signing up to new schemes or submitting data to comply with the most recent set of regulations. The ‘lookback’ period can stretch back decades, with the regulator seeking to recover avoided fees.
Understanding your past obligations
For some manufacturers, there is a misconception that packaging regulations apply only to plastic packaging, misled by the simpler, more straightforward Plastic Packaging Tax², which was introduced in 2022.
However, the original producer responsibility obligations and the current extended producer responsibility³ apply to any material used to hold, protect, handle, deliver and present goods. The regulations are also far more complex to navigate and require much more fact-specific application.
In very broad terms, the original producer responsibility regulations applied to all businesses that ‘handled’ in excess of 50 tonnes of packaging and had a turnover in excess of £2 million. There was an obligation to register as a packaging producer with the regulator and meet recycling obligations, evidenced by purchasing Packaging Recovery Notes (PRNs).
The original regulations applied from 1997 until the introduction of pEPR in 2025, with some compliance requirements remaining in place until 1 January 2026.
Handling was defined as doing all of the following:
- Carrying out one or more of the packaging activities as defined in the regulations or having these activities carried out on your behalf
- Owning the packaging on which the activities were carried out
- Supplying packaging or packaging materials at any stage in the chain or to the final user of the packaging
For those businesses who were aware that it applied, many of them joined a compliance scheme. The compliance scheme provider managed the returns on their behalf and took on the legal responsibility for meeting the recycling obligation.
Take stock if you are part of a group of companies
Some manufacturers have been inadvertently caught by the regulations following an acquisition. Under the original producer responsibility obligations, group companies had to add up the total amount of packaging handled and annual turnovers to see if, together, they met the thresholds. It could be an acquisition that brought the group above the turnover/packaging thresholds.
You were considered a group if you were a holding company and had two or more subsidiaries that handled packaging, or both you the holding company and at least one subsidiary handled packaging. A holding company that did not handle packaging itself with only one subsidiary that did, was not a group.
What are the likely sanctions?
Breaches of the original regulations such as failure to register as a producer and failure to recover and recycle packaging are criminal offences. However, the regulator now often decides to accept something called an enforcement undertaking.
Other alternatives to prosecution could include a fixed/variable monetary penalty or formal caution, depending on the nature of the alleged offence.
What are my obligations today?
The Plastic Packaging Tax is distinct from pEPR and applies, as you would expect, only to plastic packaging. In simple terms, it applies if you import or manufacture more than 10 tonnes of plastic packaging with less than 30% recycled content in a 12-month period. If so, you must register, keep records and submit quarterly returns to the regulator. Its purpose is to encourage behaviour change, increasing the amount of recycled plastic being used.
pEPR came into force on 1 January 2025 and has replaced the original packaging waste regulations. pEPR aims to shift the costs of recycling and recovery of packaging to businesses using it and incentivise through variable fees the use of materials that are more easily recycled.
Again, in very broad terms, the regulations apply to all businesses that are established in the UK and supply or import more than 25 tonnes of packaging and have a turnover of at least £1 million (’small producers’) who must report their packaging data under pEPR if they carry out any of the packaging activities. Those with a turnover of more than £2 million which supply or import more than 50 tonnes of packaging (’large producers’) have reporting and financial obligations.
As an increasing number of businesses submit data and engage with pEPR, it is worth giving some consideration to past compliance with packaging waste regulations, as well as the current regulatory framework.
References
- Producer Responsibility Obligations (Packaging Waste) Regulations 1997, later superseded by Producer Responsibility Obligations (Packaging Waste) Regulations 2007 (as amended)
- Plastic Packaging Tax (General) Regulations 2022
- Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024
About the author: Jennifer Faulkner is a solicitor, planning & environment at Birketts LLP.
The content of this article is for general information only. It is not, and should not be taken as, legal advice.
