The two-year transposition time - the grace period granted for the EU member states to harmonise their national legislation with the new regulations – has elapsed and the Single-Use Plastics directive officially entered into force last month, on 3 July.
As a result, the 10 single-use plastic items that are most commonly found thrown away on beaches, as well as to products made from oxo-degradable plastic and fishing gear containing plastic, are now banned throughout the EU. These 10 items, plus discarded fishing gear, are known to represent at least 70% of all marine litter in the EU.
The new law requires all 27 EU member states to enforce the new guidelines as from its effective date, while Norway, despite not being a member of the EU, is implementing the SUP directive as a member of the European Economic Area. Essentially, what this means is that after 3 July, any failure to comply with the national provisions adopted pursuant to this directive will be penalised - and according to the directive, the penalties will be ‘effective, proportionate and dissuasive’.
Some background on the new law
In January of 2018, the European Commission presented its proposal for 'A European Strategy for Plastics in a Circular Economy', advising of the need to combat the steady increase in plastic waste generation, and the leakage of plastic waste into the European and global environment, and specifically the marine environment. Among others, it called for a legal framework targeted at reductions of such leakages in order to curb the negative environmental, health and economic impacts associated with the use of specific types of plastic products and to achieve a circular life cycle for plastics.
The upshot was the adoption, in June 2019, of what is officially called the Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment, but which has become known as the Single-Use Plastics directive, or simply the SUP law.
Far from demonising plastics, the SUP Directive acknowledges these materials’ important role in everyday life. This success is thanks to their sheer versatility and breadth of application, together with low cost and high performance. But as is all too evident today, there is a dark side to this success, which this directive aims to address.
To that end, it has adopted a multi-pronged approach, which includes promoting circular economy strategies to contribute to achieving SDG 12 (responsible consumption and production), and calling for prioritizing sustainable, non-toxic reusable products and reuse systems, as well as setting targets to reduce the consumption of single use products for which no sustainable alternative yet exists. By retaining the value of products and materials for as long as possible and generating less waste, the economy of the Union can become more competitive and more resilient, while reducing pressure on precious resources and the environment.
In addition, the directive recognises that EU Member States are required to tackle marine litter as a contribution to SDG 14 (life below water). The EU must play its part in preventing and tackling marine litter and this directive is part of its efforts in that regard. As it points out: ‘while plastic plays a useful role in the economy and provides essential applications in many sectors, its growing use in short-lived applications, which are not designed for re-use or cost-effective recycling, means that related production and consumption patterns have become increasingly inefficient and linear’. Single-use plastic products are an exemplary manifestation of this phenomenon – and of how small the step is from single-use to litter, marine and otherwise.
What are single-use plastic products?
For a directive like this one to work, first, the term ‘single-use plastic product’ must be adequately defined.
A single-use plastic product refers to a product that ‘is made wholly or partly from plastic and that is not conceived, designed or placed on the market to accomplish, within its life span, multiple trips or rotations by being returned to a producer for refill or re-used for the same purpose for which it was conceived,’ according to the new directive. In other words, single-use plastic products are designed to be used once or for a very short period, after which they can be disposed of.
Prime examples are the articles on the list of banned products explicitly stated in the directive. These include cotton bud sticks, straws, plastic cutlery, plates, EPS food containers and beverage cups plus their covers and lids, balloon sticks and beverage stirrers. The consumption of single-use plastic products made from single-use paper- or board-based products with a plastic coating or lining must be ‘measurably’ reduced by 2026.
EPS has been singled out as the Commission considers it particularly problematic: lightweight, reaches the ocean from both inland urban areas and in-ocean activities, where it breaks down into tiny components which are easily mistaken by aquatic life for food. However, the ban covers takeaway cups and containers only: the EU Commission has explicitly clarified that items such as EPS boxes for fresh fish and meat, ice cream and cakes are not covered by the ban.
Interestingly, when it comes to the materials used to make these products, in the directive, no distinction is made between plastics based on biomass and conventional oil-based materials. The directive has adopted the viewpoint that ‘plastics manufactured with modified natural polymers, or plastics manufactured from bio-based, fossil or synthetic starting substances are not naturally occurring and should therefore be addressed by this directive’. The guidance provided by the Commission on the interpretation and implementation of the directive offer further information in this respect, including a clarification of what is meant the terms natural polymer and naturally occurring substances.
While the two terms seem almost interchangeable, the distinction drawn by the Commission between the two has far-reaching consequences. According to this directive, the concept of natural polymer refers to a broader group that is independent of the method used to extract the substance from nature. This means, for example, that cellulose and lignin extracted from wood and corn starch obtained via wet milling meet the definition of natural polymer.
By contrast, PHA, a biopolymer produced and stored in the cells of microbes, does not. And it is here that the definitions devised by the European authorities become murky.
The guidelines offer the following clarification: ‘Based on the REACH Regulation and the related ECHA Guidance, polymers produced via an industrial fermentation process are not considered natural polymers since polymerisation has not taken place in nature. Therefore, polymers resulting from biosynthesis through man-made cultivation and fermentation processes in industrial settings, for example, polyhydroxyalkanoates (PHA), are not considered natural polymers as not being the result of a polymerisation process that has taken place in nature. In general, if a polymer is obtained from an industrial process and the same type of polymer happens to exist in nature, the manufactured polymer does not qualify as a natural polymer.’
The guidelines offer the example of wet wipes: wet wipes, which are made using non-natural polymers or natural polymers that have been chemically modified, like polyester and PHA, fall within the scope of the directive. Wet wipes made entirely from natural polymers that have not been chemically modified, like viscose and lyocell, fall outside the scope of the directive.
The distinction seems far-fetched, to say the least, and dependent on reasoning more tortured than comprehensible. As a result of this stance, a family of highly promising, fully biodegradable materials eminently suited for single-use applications is shut out from use – but only in Europe. This, despite the fact that in recent years the EU has sponsored PHA research and innovation projects worth over €110 million to investigate its use in, among others, single-use plastic applications. The rest of the world continues to invest in and explore the potential of PHA in a host of single-use applications, inevitably pulling ahead as new technologies and opportunities evolve.
Where do we go from here?
The impact of the directive, as noted above, is not limited to an immediate ban on the group of specified products. Among other things, it also calls for reductions in and the monitoring of the consumption of certain single-use plastics for which there is no alternative. A sustained quantitative reduction in consumption of these products, compared to a 2022 baseline, is required by 2026.
Plastic bottles are also addressed: a collection target has been set of 90% recycling for plastic bottles by 2029, with an interim target of 77% by 2025. Moreover, PET bottles must be made of at least 25% recycled pet by 2025; all bottles must have a recycled content of 30% by 2030.
New rules will also apply in respect of compulsory markings on packaging or on certain specified products, making it clear that these products contain plastics and informing consumers about the appropriate waste management options for these products. These products include sanitary items, wet wipes, tobacco products with filters and drinking cups.
The directive also incorporates the ‘polluter pays’ principle, through EPR schemes covering the costs of collection, transport and treatment, data-gathering, litter clean-ups and awareness-raising measures for other single-use plastic items such as food containers, wrappers, beverage containers and lightweight plastic carrier bags. Paying into the EPR scheme will come as a new expense across the 27 EU member states. Member states must also implement rules on extended producer responsibility (EPR) for fishing gear containing plastic and monitor and assess plastic fishing gear with a view to establishing EU-wide collection targets.
Lastly, the directive emphasises the need for awareness-raising: the importance of informing consumers and encouraging responsible consumer behaviour in order to reduce litter from such single-use plastic products; to make consumers aware of reusable alternative products and the impact of inappropriate disposal of single-use plastic waste on the sewage system.
The market restrictions and marking of product rules apply from 3 July 2021, while the product design requirements for bottles apply from 3 July 2024. The extended producer responsibility measures apply from 31 December 2024.