Overview of Sustainability Requirements for Packaging

Sustainability Requirements for Packaging
Germany

The below version control table serves to document all updates made to the report. The purpose is to ensure the information is always accurate and up-to-date.

1. Overview of sustainability requirements for packaging (e.g. no single-use plastic)

In Germany, sustainability requirements for packaging are regulated under the Packaging Act (Packaging Act 3, VerpackG3, VerpackG 3) Act on the placing on the market, take-back, and high-quality recycling of packaging of June 09, 2021, valid from May 16, 2023 [1]. An English translation of the scope of the Act and definitions it provides is given in Annex 1.

The main actor under the Packaging Act is the producer: this can also be importers and other commercial initial distributors of packaging in Germany.  Even retailers can be producers under the Packaging Act.

Producers have a number of obligations under the Packaging Act, including the take-back and recycling of packaging waste and, where applicable, registration (Central Agency Packaging Register: Verpackungsregister), system participation and regular reporting of volume data. 

Violations of the Packaging Act can result in fines of up to EUR 200,000 and civil penalties. The public register makes the Packaging Act a new opportunity for warning letters. As a rule, every player in the distribution chain has its own obligations as a producer under the Packaging Act, i.e. not just the first or last supplier. The principle is comparable to the assessment of VAT, where every player has to pay taxes on their "turnover".

With the exception of service packaging (disposable tableware, shopping bags, etc.), empty packaging may no longer be purchased on a pre-licensed basis. Every filler of packaging therefore generally becomes a manufacturer.

Packaging is differentiated according to type, material and brand.

The costs for taking back and recycling packaging waste are generally linked 1:1 to the quantity of packaging materials placed on the German market for the first time.

The various manufacturer obligations differ between packaging subject to system participation (B2C) and packaging not subject to system participation (B2B, transport and other packaging). The scope and expense of these requirements are significantly higher for packaging subject to system participation than for other types of packaging.

Packaging that can be generated as waste by private final consumers or similar sources of waste generation is subject to system participation and registration. Large distributors of packaging subject to system participation must also submit a declaration of completeness once a year.

According to Section 9 (5) sentence 2 VerpackG, retailers may not resell products with unregistered packaging that is subject to system participation. However, they may be able to take on the producer obligations, i.e. in particular registration and system participation, so that they can still offer the goods.

The most relevant sections of the Packaging Act concerning sustainability are the following (English translation):

Section 1 General provisions:

§ 1 Waste management objectives:  

(1) This Act lays down product responsibility requirements for packaging in accordance with Section 23 of the Closed Substance Cycle and Waste Management Act. It aims to prevent or reduce the impact of packaging waste on the environment. In order to achieve this goal, the law is intended to regulate the behavior of obligated parties in such a way that packaging waste is primarily avoided and, in addition, prepared for reuse or recycled. At the same time, market participants are to be protected from unfair competition. 

(2) Joint household collection of packaging waste and other household waste of the same material is intended to generate additional recyclable materials for high-quality recycling.

(3) … 

4) This Act is also intended to ensure that the European targets of Directive 94/62/EC on packaging and packaging waste are met. According to this directive, at least 65% by mass of the packaging waste generated within the scope of this Act must be recovered and at least 55% by mass recycled each year. The recycling of the individual packaging materials must reach at least 15 percent by mass for wood, 22.5 percent by mass for plastics, 50 percent by mass for metals and 60 percent by mass for glass, paper and cardboard, whereby in the case of plastics only material that is recycled back into plastic is taken into account. By December 31, 2025 at the latest, at least 65% by mass of the packaging waste generated within the scope of this law must be recycled annually, and at least 70% by mass by December 31, 2030 at the latest. The recycling of the individual packaging materials must reach at least 25% by mass for wood, 50% by mass for aluminum and plastics, 70% by mass for ferrous metals and glass and 75% by mass for paper and cardboard by 31 December 2025 at the latest; by 31 December 2030 at least 30% by mass for wood, 55% by mass for plastics, 60% by mass for aluminum, 75% by mass for glass, 80% by mass for ferrous metals and 85% by mass for paper and cardboard. The Federal Government shall carry out the necessary surveys to prove that the targets in sentences 2 to 5 have been achieved and shall arrange for the public and market participants to be informed.

Section 7 Reducing the consumption of certain single-use packaging:

§ Section 33 Reusable alternative for single-use plastic food packaging and single-use beverage cups:

(1) From January 1, 2023, final distributors of single-use plastic food packaging and single-use beverage cups that are only filled with goods at the final distributor shall be obliged to also offer the goods offered in this single-use packaging for sale in reusable packaging at the place where they are placed on the market. The final distributors may not offer the sales unit consisting of goods and reusable packaging at a higher price or under worse conditions than the sales unit consisting of the same goods and disposable packaging. Sentences 1 and 2 shall not apply to sales through vending machines that are not publicly accessible in businesses for the supply of employees.

(2) Final distributors pursuant to paragraph 1 sentence 1 shall be obliged to draw the attention of final consumers at the point of sale to the possibility of receiving the goods in reusable packaging by means of clearly visible and legible information boards or signs. In the case of a delivery of goods, this information must be given accordingly in the respective presentation media used.

(3) By way of derogation from Section 15 (1) sentence 2, the take-back obligation for final distributors pursuant to (1) sentence 1 shall be limited to the reusable packaging that they have placed on the market.

§ Section 34 Simplifications for small businesses and vending machines:

(1) Final distributors pursuant to Section 33 (1) sentence 1 with a total of no more than five employees whose sales area does not exceed 80 square meters may also fulfil the obligation pursuant to Section 33 (1) sentence 1 by offering to fill the goods into reusable containers provided by the final consumer; in the case of a delivery of goods, the sales area shall also include all storage and shipping areas. When determining the number of employees, part-time employees with a regular weekly working time of no more than 20 hours are to be taken into account with 0.5 and no more than 30 hours with 0.75. § Section 33 (1) sentence 2 shall apply accordingly.

(2) In the case of distribution through vending machines, final distributors may also fulfill the obligation under Section 33 (1) sentence 1 by offering to fill the goods into reusable containers provided by the final consumer. § Section 33 (1) sentence 2 shall apply accordingly.

(3) Final distributors who make use of the facilitation under paragraph 1 or 2 shall be obliged to inform the final consumer at the point of sale by means of clearly visible and legible information boards or signs of the offer to fill the goods into reusable containers provided by the final consumer. In the case of a delivery of goods, this information must be given accordingly in the respective presentation media used.

2. Expected regulatory changes 

On September 28, 2023, the German Bundestag passed the Disposable Plastics Fund Regulation (EWKFondsV), which will come into force on January 1, 2024. The Regulation sets out both the levy rates and the payment system for the Single-Use Plastic Fund. The corresponding Single-Use Plastic Fund Act came into force on May 16, 2023, and creates the legal basis for the establishment and administration of the Single-Use Plastic Fund.

The fund was set up to support the reduction of environmental littering. All affected manufacturers of certain single-use plastic products are obliged to contribute to the collection and cleaning costs of local authorities by paying a levy.

On the basis of the specified levy rates, each company can now use the quantity placed on the market to calculate the exact amount of the levy to be paid in the future. Manufacturers will have to pay the levy for the first time from spring 2025, based on the quantity of products placed on the market in the calendar year 2024. The UBA is currently developing the necessary databases to process the Single-Use Plastic Fund.  The registration of manufacturers and those entitled to claim should start on time on January 1, 2024.

The points system for the disbursement of fund resources to eligible municipalities will also be defined by the Single-Use Plastic Fund Regulation. It provides for the awarding of points for cleaning, collection, disposal, and awareness-raising services in both urban and non-urban areas. Care has been taken to ensure that the key figures to be specified by the beneficiaries are as precise as necessary but as unbureaucratic as possible. For example, the municipalities have to specify the volume of waste bins, the number of cleaning kilometers driven, and the amount of waste disposed of.

The levy rates and the points system are reviewed by the federal government every three years in accordance with legal requirements. The Federal Environment Agency (UBA) will again commission a study to determine the necessary data. The new Single-Use Plastics Commission will be involved in the design of this study and the subsequent amendment of the ordinance. This commission is also anchored in the Single-Use Plastics Fund Act and was constituted for the first time on September 28, 2023 [2].

3. References

1. Packaging Act (Packaging Act 3, VerpackG3, VerpackG 3) Act on the placing on the market, take-back and high-quality recycling of packaging of June 09, 2021, valid from May 16, 2023

https://www.verpackungsgesetz.com/gesetzestexte/verpackg/

2. Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection

https://www.bmuv.de/pressemitteilung/bundestag-legt-abgaben-fuer-to-go-becher-und-zigarettenkippen-aus-einwegplastik-fest