The EU’s Game-Changing New Packaging Law

The EU’s Game-Changing New Packaging Law

Transformation, not incremental change

The European Union’s recently agreed Packaging & Packaging Waste Regulation is revolutionary. A simple comparison of its length with the existing law is a good first indicator: it is increasing from the current 32 pages to an expected 250+ pages. In one step, the law has been transformed from a recycling promotion measure with few teeth to a series of far-reaching packaging design changes set as a minimum condition of market access. For the first time, it addresses economic operators—as opposed to governments—directly and obliges them to make changes that may fundamentally alter their entire packaging portfolio and strategy. The Regulation introduces binding measures on prevention, reuse, and recycled content while making recyclability and recycling at scale a minimum requirement. This approach is set in stark contrast to previous revisions of the Packaging & Packaging Waste Directive which focused mainly on incremental increases to recycling targets and requirements to strengthen the effectiveness of Extended Producer Responsibility. 
 

The requirements are far-reaching and intricate

The Regulation sets a series of minimum packaging design requirements, which must be met for packaging to be allowed on the EU market. Exact deadlines will be known once the final Regulation is published and will range from the beginning of 2025 to 2030 and beyond. They will apply to all packaging—at the levels of sales, distribution and transport—with some exemptions in the medical, veterinary, baby food, and dangerous goods categories. Please see a snapshot of all the key provisions in Figure 3 at the end of this document.

The following points provide a topline overview of the main packaging requirements and new administrative obligations for the purposes of compliance. Please get in touch for further details.

• Over-packaging: Only the minimum amount of material needed to deliver the function of the packaging may be used. Double walls, false bottoms, and unnecessary layers will be prohibited. There is some flexibility to allow use of material to give packaging a distinctive form, for example a trademarked shape, but consumer acceptance will no longer be allowed to justify use of more material. Empty space in distribution, transport, and e-commerce packaging may not exceed 50%. Padding and fillers to protect the product will count as empty space.
• Substances of concern: Limits on concentration of PFAS in packaging for food. Presence and concentration of other substances of concern are to be minimized. Substances with a negative effect on reuse and recycling will be restricted. Existing heavy metals limits are carried over unchanged.
• Recyclability: All packaging must be designed for recycling in processes proven in an operational environment. Packaging will be awarded a score based on its recyclability; it will have to achieve a minimum score to be allowed on the market and packaging achieving higher scores will benefit from reduced Extended Producer Responsibility (EPR) fees. Later, packaging will also have to achieve minimum recycling rates to be allowed on the market and to benefit from lower fees.
• Recycled content: A plastic part greater than 5% of the weight of a packaging unit will have to contain a minimum amount of recycled content. The recycled content will have to come from post-consumer plastic waste collected and recycled in the EU or, if imported, collected and recycled in conditions equivalent to those required in the EU. This requirement applies to contact sensitive (e.g., packaging for food, cosmetics, medical devices dangerous goods, etc.) as well as non-contact sensitive packaging.
• Compostable packaging: Tea and coffee bags, and sticky labels for fruit and vegetables will have to be compostable. Use of compostable or biodegradable materials for other applications will be allowed only if certain strict conditions are met with regard to their collection or compatibility with recycling.
• Reusability: If reuse is intended, packaging will have to be designed to accomplish a certain number of rotations and meet other requirements on emptying, unloading, refilling, and reconditioning.
• Labeling: New EU harmonized labeling systems will be introduced to help consumers correctly sort recyclable packaging and identify if packaging is reusable and (if applicable) its recycled or bio-based content. Sorting and reusability labels will be mandatory. Some use will be made of digital labels. It will be mandatory to use digital watermarking to indicate the presence of substances of concern.

A number of new single-use packaging bans are introduced, as well as reuse and refill targets which, if not met, could also result in withdrawal from the market:

• Bans: A number of single-use formats, mainly plastics, will no longer be allowed for specific uses, such as grouping products for consumer convenience (e.g. multi-packs), protecting fresh fruit and vegetables, or containing food and drinks and single-serve condiments in restaurants or hygiene products in hotels. Almost all uses of very lightweight plastic bags will be banned.
• Reuse targets—transport and distribution packaging: 40% of most packaging types used to transport goods in the EU will have to be reusable. The target increases to 100% in the case of transport within a single EU Member State or between a company’s own sites or those of a partner enterprise in other Member States. 10% of distribution packaging—except cardboard boxes—will have to be reusable.
• Reuse targets—beverage packaging: 10% of most alcoholic and non-alcoholic beverages will have to be sold in reusable packaging.

Compliance will have to be demonstrated on the basis of a self-assessment. Companies placing packaging on the market will have to issue a declaration of conformity based on their own specifications backed up by evidence provided by suppliers and assessed in-house. A third party can be used to carry out the conformity assessment, but they will not bear responsibility if the packaging is found to be non-compliant. 

Most sectors of the economy are affected, but the full impact has yet to be revealed 

Judging by the unusually high number of stakeholders that sought to influence this piece of legislation as it passed through the EU’s decision-making process, the new Regulation has a broad reach and will have real economic impact. Any company that uses packaging to distribute, handle or import goods into the EU, or that supplies or imports packaging or packaging materials, is affected.

It will take some years for the full impact to play out. This is partly due to the Regulation’s complexity, but also because much will depend on a whole range of technical details that have yet to be decided. Around 30 pieces of secondary legislation will have to be adopted before the full meaning of the requirements can be evaluated. This will also hold up investment planning, with estimates expected into billions of euros for the cost of infrastructure needed to deliver on the reuse and recycling requirements.

Although many in the plastics industry find the Regulation has an unfair bias against their material, brands will have to weigh the pros and cons of each material and format before deciding which one is the best for their particular application. For example, the design-for-recycling criteria and recyclability scoring method, which have yet to be decided, could tip the balance.

Nevertheless, some of the Regulation’s meaning is already clear. Ambitious new requirements will force companies who wish to supply the EU market with packaged goods to innovate. The hope is that this will give them a competitive advantage in the future. On the other hand, such requirements—especially if paired with lax enforcement within the EU and at its borders—threaten to undermine investments and create unfair competition. Some non-EU brands, especially smaller ones, may find that the cost of compliance makes the EU an unattractive market.

Another key point which will require close monitoring is the possibility for EU countries to adopt national measures which go further than the EU Regulation or which diverge from it. This is the case, for example, for prevention measures where Member States are required to phase down packaging consumption. The Regulation sets targets but does not say how they are to be met, leaving potential for national taxes, bans, or other measures which could increase complexity and fragment the EU’s internal market.

Proposed reuse targets for take-away food and beverage packaging, which were extremely controversial and became the most high-profile political issue during negotiations, did not make it into the final Regulation. This could turn out to be a Pyrrhic victory for manufacturers of these packaging formats and the take-away restaurants that use them because Member States are allowed to set national targets, and we may see a very fragmented picture emerging across the EU. A reuse target for packaging of household appliances also fell. 

This is only the beginning 

The final Regulation is currently expected to be adopted and published towards the end of 2024, at which point the clock on implementation will start to tick. For the European Commission, this will kick off a series of studies prior to drafting and adopting the legislative texts that are needed to complete the Regulation’s basic requirements. This phase is expected to be intense, with many competing stakeholders defending sometimes existential interests, and more advocacy required at the national level to influence decisions being taken in EU Member State capitals.

At the same time, the deletion of politically symbolic reuse targets from the European Commission’s original proposal has left some parties with a clear advocacy goal. Current indications are that the EU’s political priorities for the next five years could lead to some kind of strategic framework aimed at making the circular economy a commercially viable proposition. It is also likely that there will be a push to further tighten restrictions on uses of certain substances of concern, which is likely to impact packaging.

Finally, there is potential for a renewed attempt to complete the EU’s single market. One focus is on financial services, with the objective of strengthening its ability to raise greater sums of private money to fund the green and digital transitions, including for packaging. Another is on removing obstacles to getting European innovations to market. It remains to be seen whether a growing tendency by some governments to turn inwards will hinder progress in leveraging the single market which is at the core of the new packaging law. 

As the Packaging & Packaging Waste Regulation is implemented, unintended consequences will emerge, and critical technical details will be decided in non-transparent EU secondary legislation procedures. EGA Brussels has the experience and skills to help you navigate these and other EU public affairs and government relations threats and opportunities. Our packaging policy experts offer deep knowledge of the regulatory framework as well as the technical understanding needed to decipher its impacts on businesses. For further information, please contact EGAʼs Europe team at Ariane.DeBellefroid@edelmanEGA.com or Fiona.Durie@edelmanEGA.com.