1997 witnessed some notable events, such as the hand back of Hong Kong to China
and Tony Blair becoming Prime Minister. It also saw the introduction of the first
piece of Producer Responsibility legislation in the UK - the UK
Packaging Waste Regulations. These Regulations aim to increase the amount of
packaging being recovered and recycled and make it a legal requirement for
companies with a turnover of more than £2 million that also handle 50 tonnes or
more of packaging or packaging materials each year, to pay towards the
recycling of that packaging. For groups, the thresholds are combined across
the whole group.
However, over the years not every obligated company has complied with these Regulations
when they should have done so. And the reason for this is often due to businesses
being unaware of or misunderstanding the requirements of the Regulations.
Should your business worry about non-compliance?
The Environment Agency (EA) and Natural Resources Wales (NRW) are the regulatory
bodies that enforce the regulations in England and Wales. Their duties involve identifying
companies they believe are obligated under the Packaging Waste Regulations and then
contacting them. If they find a company that hasn’t registered they can then
take enforcement action which ranges from ‘official’ warnings through to prosecutions,
with the potential for significant fines. In the past, Valpak would often speak
to companies who had failed to comply in previous years and wanted to ‘make up’
for it; however, these companies had no way out and would end up being prosecuted.
The largest fine was around £250,000.
A better option
In 2011, the Government introduced
civil sanction powers to the EA for some environmental offences, including the
Packaging Waste Regulations. This now means that companies that find they have failed
to comply after 6 April 2010 in England and 15 July in Wales now have the option
to make an Enforcement Undertaking.
But what about companies based in Scotland?
As part of the Regulatory Reform (Scotland) Act Part 3 2014, the Scottish Environmental
Protection Agency (SEPA) has been given similar powers to the agencies in England
and Wales to allow Enforcement Undertakings. However, there is likely to be some
notable differences, and full guidance on how they will operate has yet to be released.
The company completing an Enforcement Undertaking (EU) has to confirm how long
it failed to comply and the reasons for this. The company should then show what
actions it has since taken to ensure ongoing compliance. In addition, the
company needs to make an offer of a sum of money equivalent to the costs avoided
for the years of non-compliance, plus an additional penalty to ensure cost of non-compliance
is higher than if the company had complied.
The money should be paid to an environmental charity or put towards a project
designed to help improve the environment. Projects specifically linked to waste
and recycling are encouraged; however, other environmental improvement projects
have also been funded in the past. In addition to the charity fund, the company
has also got to pay the agency’s costs to review the EU and monitor the project
if accepted. Please bear in mind that the agency could refuse to accept the EU and
prosecute a company.
It’s interesting to note that since the introduction of the civil sanctions regime
for packaging offences, the number of prosecutions has dropped from around 30-50
a year down to a trickle.
The benefits of being proactive
If a company voluntary makes an EU before the EA or NRW tell them that they will
be taking action, the ‘penalty’ charge that company will need to offer as part of
the fund is 10%, whereas if the agency had to notify the company first, they will
expect the fund to be uplifted by around 30%.
Therefore, by proactively taking control of non-compliance a company is able
to avoid the risk of higher fees, more serious repercussions and may not necessarily
face criminal prosecution.
Environmental benefits of civil sanctions
Not only does the company feel the benefit of the civil sanctions process but
so does the environment, which is one of the main purposes of the Packaging Waste
It is integral to the Enforcement Undertaking that the final offer fund goes
to an environmental charity. Charities that have benefited from civil sanctions
in the past include The Woodland Trust, The Wildlife Trust, and Freshwater Habitats
However, Enforcement Undertakings are by no means a silver bullet as they don’t
make up for the fact that past packaging waste sent to landfill was not offset by
the purchase of PRNs (Packaging Waste Recovery Notes); however, they do ensure that
the money the recycling infrastructure should have received will be used to benefit
The aim of the Regulations is to increase the amount of packaging waste being
recycled and recovered. Although this cannot be done retrospectively, Enforcement
Undertakings allow your company to make a positive environmental impact.
How can Valpak help?
Have we got your attention? If you think that the company you work for might
be obligated but you have no idea where to start, Valpak’s expertise can come into
We offer a bespoke service, which can be tailored to how much help your company
requires. We are able to:
- calculate the costs avoided by not complying with the Packaging Waste Regulations
in the past
- source and suggest suitable environmental projects to fund
- help coordinate the funding of environmental projects
- complete and submit your company’s Enforcement Undertaking Offer Form to
the Environment Agency
- assist with any follow up queries from the Environment Agency
Packaging Regulations - How do I become compliant? - Webinar
Alternatively, we are hosting Packaging Compliance events throughout 2017 to provide attendees with an
overview of the regulations and outline the factors which obligate a company. During
the session we will also discuss some methods a company can adopt to ensure compliance.
Places on our events can be booked online.
If you wish to find out more about civil sanctions and how we can help you, please
don’t hesitate to contact one of our friendly technical advisors on 03450