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Every cloud has a silver lining: Solutions for companies unaware of their obligations under the Packaging Waste Regulations

David Daw
Nov 03, 2016

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 requirements

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 Regulations.

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 Trust.

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 environment.

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 play.

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 682 572.

Disclaimer: The opinions expressed in this weblog represent those of the individual authors and not those of Valpak Limited or any other organisation.