Europe’s legal landscape of reducing plastics

According to EUROstat, each European citizen generates almost 190kg of packaging waste every year. The increasing production of plastics, combined with improper disposal and insufficient recycling, leads to a growing global volume of plastic waste, subsequently causing adverse environmental impact.

To address this adverse environmental impact, the European Union (EU) stands at a crucial point where it must balance between the convenience of plastic use and the urgency of reducing the volume of plastics waste. Therefore, in light of the EU Green Deal, the EU recently adopted various regulations aimed at mitigating the environmental impact, particularly concerning single-use plastics. This shifting terrain offers both prospects and challenges for companies or sectors involved in the production or utilisation of plastic.

This article discusses high-level the latest insights on the EU’s legal landscape regarding plastics.

Legal instruments

The main EU plastics-reduction rules encompass the Single-Use Plastics Directive (SUPD) and the revised Packaging and Packaging Waste Directive (PPWD). Furthermore, waste in general is by and large regulated by the revised Waste Framework Directive (WFD), which introduced legal concepts that are also relevant for plastics regulation. The Commission also published a proposal for a Packaging and Packaging Waste Regulation (PPWR) to replace the PPWD, of which the Provisional Agreement was adopted by the European Parliament on 24 April 2024.

Besides these specific plastics-reduction regulations, the EU also introduced more general sustainability reporting and due diligence mechanisms such as the CSRD and respectively the CSDDD or CS3D, although the latter still must be formally adopted by the European Council (click here for more information). Both instruments can be perceived as the core of the EU’s ESG regulation. By introducing corporate sustainability reporting and due diligence obligations, companies with a significant presence or trading in the EU are obliged to monitor their environmental footprint including, among other things, the use of plastics and set targets to reduce their plastic waste.

Compliance challenges

The EU’s regulatory plastics framework aims to compel the plastics industry to innovate, adapt, and rethink traditional practices. Encouraging collaboration across the value chain to reduce plastic waste can also help to reduce the adverse environmental impact of plastics.

However, complying with these regulations and standards can pose significant challenges for manufacturers, distributors, and suppliers operating in the plastics industry. The main compliance issues will be discussed more in-depth hereunder.

Single-use plastics

The SUPD aims to prevent and reduce the impact of single-use plastic products and plastic residues on the environment and on human health by introducing a ban on single-use products like plastic straws, cutlery, food containers, drinking cups, and bags. This way, manufacturers and retailers are compelled to switch to eco-friendly alternatives such as biodegradable polymers or paper products. For other single-use plastic products, the EU aims to reduce plastic waste through awareness campaigns, implementing design standards (like connecting caps to bottles), and introducing labelling requirements to inform consumers about the environmental impact and proper disposal methods.

Also, Article 9 SUPD imposes an extended producer responsibility (EPR) – a set of rules regarding waste management as well as collection and recycling obligations – on producers of single-use plastics. This EPR scheme introduces the following collection targets, based on the weight of single-use plastic products placed on the market in a given year, for recycling:

• 77% by 2025;
• 90% by 2029

Furthermore, Article 6(5) SUPD provides that PET beverage bottles must contain 25% of recycled plastics from 2025. This target will be increased in 2030 up to 30% and extended to other plastic bottles. Finally, to enforce the provisions of the SUPD effectively, Article 14 SUPD obliges Member States to impose penalties in case of non-compliance.

PPWR

The Provisional Agreement on the PPWR, along with the Commission’s Circular Economy Package, can be seen as driving the plastics industry towards innovative and sustainable practices.

Provided that this version of the provisional agreement on the PPWR will be formally adopted, the PPWR, briefly put, requires that all packaging will become recyclable and that the presence of substances of concern is minimised. The PPWR also aims to significantly reduce the generation of packaging waste by setting binding re-use targets, restricting certain types of (single-use) packaging and requiring economic operators to minimise the packaging used. Also, the PPWR sets new binding re-use targets for 2030 and indicative targets for 2040. Moreover, the PPWR intends to restrict the placing on the market of food contact packaging containing per- and polyfluorinated alkyl substances (PFAS) above certain thresholds.

With regard to single-use plastics, the PPWR stipulates that, by 2029, Member States must ensure the separate collection of at least 90% per annum of single-use plastic bottles and metal beverage containers by setting up a deposit returning system.

Finally, the PPWR obliges Member States to impose administrative fines in case of non-compliance.

Non-legal risks caused by the influence of stakeholders

Various stakeholders, such as governmental bodies, NGOs, consumers, and investors, are becoming more aware of the environmental risks associated with unrecycled plastics waste on marine and terrestrial ecosystems, as well as human health. It is expected that this level of awareness will increase due to progressing scientific insights, the publication of monitoring reports from the regulatory authorities, and the information stemming from sustainability reports pursuant to the CSRD or other ESG due diligence obligations.

In turn, the risks associated with the adverse impact of using plastics extend far beyond mere legal compliance. For instance, lacking a coherent ’plastics sustainability strategy' could result in decreasing investors interest and reputational damage in case this failure becomes publicly known.

Moreover, stakeholders could aim to influence a company’s behaviour in their own specific way in order to force a company to reduce its plastic waste. Investors, for instance, could grow more cautious about stranded assets. Following the ‘Taxonomy Regulation’ and the ‘Sustainable Finance Disclosure Regulation’ (SFDR), investors are incorporating the regulatory restrictions on non-biodegradable single-use plastics into their investment strategies. Whether through enhanced reporting or corporate commitments, investors seek assurance that their invested companies are actively reducing their dependence on single-use plastics. These persistent reputational risks suggest that companies are better off prioritising genuine sustainability efforts in their packaging choices.

Furthermore, non-legal binding instruments such as the sustainable development goals (SDGs), could also serve as a useful compass to prompt environmental action. Although the SDGs does not directly pose a legal risk, they can generate negative publicity in case of non-compliance.

Litigation risk

In addition to the above, stakeholders could, besides filing complaints with the regulatory authority, also initiate civil proceedings against companies that fail to address the environmental impact caused by plastic waste adequately (see by analogy the Shell-judgment by the Dutch District Court of The Hague of 26 May 2021).

Already lawsuits have been brought against large multinationals’ plastic production in France and the United States. Allianz, a global insurance firm, has recognised plastic production and usage as an ongoing liability with regard to environmental harm and human health risks.

Greenwashing

As a result of growing sustainability awareness among consumers, companies could also market their commitment to reducing plastic use or adopting circular economy practices. Therefore, ‘sustainability’ is increasingly becoming a competitive parameter. However, the fact that a majority of the consumers is willing to pay for more sustainable packaging or prefer to buy products with more sustainable packaging, might tempt businesses to exaggerate their green credentials. This practice is regarded by the European Commission and national consumer protection authorities as ‘greenwashing’.

Following the Commission’s revised notice on unfair trading practices (as well as the Empowering Consumers Directive and the adopted text by the European Parliament ), the giving of false impressions of the environmental impact or benefits of a product is being deemed to be misleading to consumers. Consequently, the EU has the aim to put an end to greenwashing by not only banning generic environmental claims on products without proof, but also claims that have a neutral, reduced, or positive impact on the environment just because the producer is offsetting emissions. Producers, therefore, should be cautious when making so-called ‘green claims’.

Conclusion

In conclusion, the legal landscape concerning plastic regulation, in general, stimulates the reduction of (single-use) plastic waste and incentives the creation of innovative technologies or sustainable alternatives. This development must be seen as part of the EU’s broader development of ESG regulation. The most significant impact is expected from the proposed PPWR.

This development poses significant challenges for manufacturers, distributors, and suppliers operating in the plastics or packaging industry. The dynamic nature of these regulations requires the continuous monitoring and adaptation to stay compliant. A potential future concern could be that the petrochemical industry sector or major consumer companies might face potential legal claims. Therefore, companies that are heavily dependent on unrecycled plastics should be acutely aware of this risk, especially as the PPWR also addresses the adverse health effects of plastics.

With the growing importance of ESG for companies active on the EU market with its mandatory sustainability obligations, reducing plastic waste can be challenging. Our ESG experts Pauline Kuipers, Paul Waszink, and Sander Wagemakers happily assist you to helping achieve your sustainability ambitions.