waste management

The problem

A legal ruling over the recycling of packaging waste means large pub, club, restaurant and hotel businesses will now be obliged to recycle waste packaging. The ruling has changed the interpretation of packaging waste legislation and may have far-reaching implications for hospitality businesses which may need to take on the heavy burden and severe cost implications of recycling - an obligation that was previously left to their suppliers.

The Law

Under the Producer Responsibility Obligations (Packaging Waste) 1997 (the "Regulations"), a business is subject to the Regulations if it is a "producer" of packaging material. One category of producer is a "seller". Currently, a business will come within the Regulations if it is a "seller", produces more than 50 tonnes of "waste packaging" a year, and has a turnover of more than £2m a year.

The duty on the business is then to estimate the weight of packaging that it handled in the previous year and to arrange for recycling or recovery of a proportion of that waste. The business can either do this itself or, more commonly, it can join a collective scheme that takes on the responsibility on the business's behalf.

The Changes

The 1997 Regulations are designed to encourage reduction and recycling of packaging waste throughout the supply chain. However, as regards recycling and recovery of beer, soft drink and mixer bottles supplied to licensed premises (for consumption on site), the legal obligation originally extended only as far as those that supplied the pubs and other hospitality premises selling them.

The Environment Agency's approach was that it was the suppliers, not the end users, which should be responsible. Thus with pubs it was brewers, not publicans, which were subject to the Regulations.

However, the recent ruling changed who should bear the responsibility for recycling and recovery of waste material. The court held that premises serving drinks in or from bottles are sellers rather than end users of packaging and hence are obliged to recycle for the purposes of the Regulations.

So who has to recycle has changed, but it also seems that what counts as waste packaging, to be recycled, has also changed. The Environment Agency's approach extends beyond the scope of the recent ruling - which concerned only bottles - to one that includes many other types of packaging.

Hotels will, for example, be considered sellers of packaging that is associated with bath and toiletry products provided for guests. Restaurants, cafés and other premises that serve food will be seen as sellers when they provide customers with milk, sauce and other catering portion packs. This change in the definition of waste packaging is important, because the wider the net is cast as to what constitutes waste packaging, the more likely it is that businesses will fall within the thresholds set for the Regulations to apply.

Another important aspect is that the volume of waste packaging taken into account in the 50-tonnes threshold is the volume handled by the corporate group or chain as a whole, and not just that handled by an individual site or company. The cumulative effect of widening the definition of packaging waste, plus stipulating that waste at all the sites owned by a business must be taken into account, is a significant extension to the application of the Regulations.

This is a rapidly developing area of interest for the Environment Agency and many other legal and governmental bodies. Although at present many smaller and medium-sized businesses are unlikely to be affected by the Regulations - despite the far-reaching changes made by the recent ruling - it's likely that in future the threshold tests for the Regulations to apply will change. But don't expect them to be increased - they will undoubtedly be decreased. It's also very possible that the requirements as to what and how much must be recycled may change.

Check List

• Check what sorts of waste packaging your business produces - this could amount to a lot more in total if you take into account the new definition of packaging.
• Check the total waste across your chain or group of companies, and ensure you take into account all sites.
• You may find that your business needs to register with the Environment Agency or one of the approved producer responsibility compliance schemes for the first time.

Beware!

The Environment Agency has recently published an article on how it intends to enforce the new regulations/ruling. Watch out for that change in the thresholds as to which businesses are subject to the regulations.

Contacts

Tarlo Lyons Solicitors
020 7814 6862

The Environment Agency
http://wwww.environment-agency.gov.uk