May 2024

We consider the new Defra and Environment Agency guidance and advise on where primary and shipment packaging can be classed as non-household packaging.

Producers will be required to pay Local Authority Disposal Fees for any household packaging that they place on the market from 2024 onwards. The Regulations that were in force for reporting packaging placed on the market in 2023, for which Local Authority Disposal Fees did not apply, required that all primary and shipment packaging was reported as household packaging, unless there was evidence that it was supplied by the producer directly to a business end-user. We advised in our February 2024 issue of Compliance at a Glance, that amendment Regulations were being laid before Parliament which would extend the circumstances under which primary and shipment packaging could be reported as non-household, with the changes applying to packaging placed on the market from 2024 onwards.

These amended Regulations are now in force, and enable producers to apply additional criteria when considering if their primary and shipment packaging can be reported as non-household packaging. We strongly recommend that all producers assess whether any of the packaging that they place on the market can be classed as non-household under the new definition, since non-household packaging does not incur any Local Authority Disposal Fees.

The following primary and shipment packaging supplied from 2024 onwards can be reported as non-household, with the key changes highlighted from the previous Regulations in bold text:

• Packaging supplied directly to end-users that are either businesses or public institutions such as a school or Government Departments; or
• Packaging imported into the United Kingdom by an importer and discarded in the United Kingdom by that importer.
• Packaging for a product, where the product is designed only for use by a business or a public institution, and where the packaging is not reasonably likely to be disposed of in a household bin or a public bin.

You must not report any primary or shipment packaging as non-household unless you have evidence to demonstrate that it meets one of the three criteria above.

Defra guidance, which is available here explains the changes in further detail.

The guidance includes factors to consider when assessing if a product is designed only for use by a business or public institution, which importantly for REPIC members states that “packaging around electrical and electronic equipment (EEE) that is classified as business to business (B2B) meets the requirements of being packaging for a product that is designed only for use by a business or public institution – if the packaging is also not likely to be disposed of in a household or public bin and this this evidenced, it may be reported as non-household”.  Packaging around B2B EEE is not automatically non-household packaging; it is a further requirement that it is not likely to be disposed in household or public bins. Defra’s guidance also provides factors to consider when making this assessment, including the size of the packaging and the circumstances in which it is removed and discarded.

The Environment Agency’s Agreed Positions, which is available here includes a helpful flow diagram to assist producers to classify their primary and shipment packaging, a copy of which is provided below:

Our top tip is to remember that even if your products are used in the home, there may be opportunities to report some of the primary and shipment packaging that you place on the market as non-household packaging. Consider:


• Spare parts – for example, do you add shipment packaging to send these to distributors that they will discard (i.e. the distributor is a direct business end-user)?
• Products – do you sell products to businesses that will install the products in domestic premises and remove the packaging? Section 3.2 of the Environment Agency’s agreed positions details circumstances in which the installer is considered the business end user of packaging.

We are likely to discuss these examples in our REPIC EPR ROOM on 17th May 2024. Please contact janetteollerhead@repic.co.uk to reserve your place.

 

Defra is yet to provide its estimated Local Authority Disposal Fees. Below, we provide a brief update of the methodology to be used and planned revisions of these.

Local Authority Disposal Fees for household packaging placed on the market in 2024

Defra is still “awaiting clearance” to publish its estimated Local Authority Disposal Fees; “base fees” that producers will incur in 2025 for household packaging that they have placed on the market in 2024.

They have advised that the first base fees to be published, which will be “as soon as possible”, will be estimated using PackFlow Reports as the data source for the quantity of household packaging placed on the market, rather than data provided by producers in 2023 EPR data reports. The data source for Local Authority costs of managing packaging waste will be estimated using data obtained previously by Waste and Resources Action Programme (WRAP).

At least two revisions of these base fees are planned during 2024. The first is likely to be released around July 2024 and will be based on the quantity of household packaging reported as placed on the market by EPR producers for 2023, with adjustments made for packaging that Defra believes has been placed on the market, however, unreported; the “ghost tonnage”. The second update of the estimated costs will be released around November 2024 and will include an update to the Local Authority costs based on data obtained directly from Local Authorities.

Modulated Fees for household packaging placed on the market in 2025

Whilst Defra has not yet confirmed which materials placed on the market in 2025 will be subject to modulation, the advice is to assume that any packaging materials that were short-listed for modulation in 2025 will be modulated (see below).

Producers placing household packaging materials on the market that are subject to modulation will be required to report these separately and will incur higher Local Authority Disposal Costs than other packaging materials within the same category. This means for example, that expanded polystyrene (EPS), which is currently reported within the plastic category, will incur higher fees than other non-modulated plastic packaging materials, should EPS be modulated.

The materials that Defra proposed for modulation are shown below. If you place any of these packaging materials on the market, we recommend you implement systems to collate this data separately.  If you cannot provide separate data, all packaging you place on the market in the same category may be modulated. For example, if you place EPS on the market, but cannot report it separately, the total quantity of plastic that you place on the market may be modulated.

 

 

Nation Data Reporting explained

As we have previously advised, Nation Data, which relates to the quantity of packaging that you have supplied to end-users in each UK nation, is required to be collected for the 2023 calendar year, however, it does not need to be reported.

2024 is the first year that data is required to be reported for packaging supplied to end-users (businesses or consumers that have discarded it) by nation. Defra has confirmed that the deadline for this data is 1st December 2025.

Labelling

Defra confirmed at the most recent Business Readiness Forum on 11th April 2024, that recyclability labelling on primary and shipment packaging will be required by 31 March 2027. A delay to the planned date has been necessary since the label required (either Recycle or Do not Recycle) will be determined by the Recyclability Assessment Methodology (RAM), which is yet to be published.

 

The WEEE Regulations require each producer member to annually check and confirm that their EEE data and their company information held by their compliance scheme is current and correct.

It is an annual requirement of the WEEE Regulations that each year a registered Director or Company Secretary confirms in writing that your EEE placed on the market data and your company registration information is correct as submitted.

We have recently emailed you regarding completing this exercise in relation to the compliance period 1st January to 31st December 2023 – please see REP-ACT-0255.  Please follow the instructions in the email and respond before the 17th May 2024.

If you have any queries, please contact Jack Studholme JStudholme@repic.co.uk