European Union Packaging and Revision of Legislation

It’s easy to see why (over) packaging is a major piece of the puzzle when it comes to reducing waste and transitioning toward circular economy solutions. We’ve all encountered those situations where we’ve thought: why? Why do we need that extra layer of plastic wrap on my already boxed and wrapped toy? 

Accordingly, it’s not surprising that in its 2020 Circular Economy Action plan, the European Commission pledged to revise the EU’s Packaging and Packaging Waste Directive (P&PW Directive) to: reduce overpackaging, promote the reusability and recyclability of packaging, and reduce the complexity of packaging materials. The Commission’s proposal to revise the Directive is scheduled for publication at the end of November of 2022. Beyond its medium to long-term implications for the circular economy transition, the revision could also help businesses in the shorter term if it results in harmonized rules across the EU.

As it stands, the applicable Directive has enabled Member States to put national-level rules and requirements on packaging that result in strange situations. Packaging placed on the market in one Member State might not comply with another Member State’s requirements. This fragmentation increases compliance and manufacturing costs for companies looking to do business across the EU and sometimes leads to overpackaging. This, at its core, is against the principles of the EU’s Single Market, which should promote the free movement of goods and services. The crux of the problem is that at present, many parts of the P&PW Directive set out policy objectives instead of specific rules. This is the nature of all EU Directives. In turn, Regulations (another type of EU legislative instrument) set ‘harmonized’ EU-wide rules less prone to interpretation by national authorities. 

P&PW Directive and Current EU Rules

In the case of the P&PW Directive, the current EU rules: (1) set minimum EU-wide targets in some areas (such as minimum recycled content for paper, glass, wood, and plastics, (2) create obligations for Member States to create return, collection and recovery schemes (that companies can join) without prescribing the exact rules and (3) suggests that Member States “may” develop circular economy provisions on reuse systems for packaging. This setup has increasingly frustrated businesses (U.S. and European alike) as it has given rise to many different legal realities across Europe. In fact, several industry associations have expressed their concerns to the Commission in joint letters over the past years. For example, in June of 2021 no less than 59 industry associations, including the American Chamber of Commerce to the European Union, the Toy Industries of Europe Association, several food service associations and the International Association for Soaps, Detergents and Maintenance Products sent a letter to European Commission Executive Vice-President Timmermans (who oversees the Green Deal) and Commissioners Breton (Internal Market), Reynders (Justice) and Sinkevičius (Environment). In this letter, they asked that the Commission take “concrete and urgent action” to “ensure full compliance with the [principle of the] free movement of goods” and “prevent or address disproportionate or unjustified measures on unilateral packaging labeling”. 

Revision of the P&PW Directive

The revision of the P&PW Directive is expected to be published in November and according to comments by Commission officials and press reporting, the Directive will be replaced by a Regulation. This will go a long way towards addressing industry concerns as Regulations are directly applicable in Member States, usually leaving little margin for divergent interpretation. Nevertheless, any proposal will still have to go through the EU’s legislative process, where Member States and the European Parliament shape the Commission’s proposal. There are bound to be many different views on which aspects of packaging and waste management should be harmonized and just how ambitious the new rules should be and how important concepts like “reusing packaging” should be defined (to give one example of many). 

The U.S. Commercial Service encourages U.S. companies of all sizes & especially SMEs that export packaged consumer goods to the EU, or that produce packaging to reach out to the Department of Commerce’s Brussels office to seek further information and to see how they may be able to engage EU decision-makers on this important topic.

For more information, please contact: 
Jim Curtis – Commercial Officer and Standards Attaché – jim.curtis@trade.gov        
Peter Marton – Commercial Specialist – peter.marton@trade.gov