Changes / innovations for manufacturers and distributors
Planned amendment to the Packaging Act
Pegnitz, 08. March 2021
On 20 January 2021, the federal cabinet passed the draft bill of the federal government to implement the provisions of the single-use plastics directive and the waste framework directive in the Packaging Act and in other laws.
In the following we would like to inform you about the essential changes / innovations for manufacturers and distributors. Please note, however, that the legislative process has not yet been completed and changes may therefore still arise in the further course:
I. Extension of the deposit obligation
III. Extension of the manufacturer's obligations for registration
VI. Warning notice for disposable plastic from July 2021
If you have any further questions, please do not hesitate to contact us.
Your BellandVision Team
+49 9241 48 32-200
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Background to the amendment to the law:
The aim of the draft bill is to implement certain requirements from EU directives that have already come into force into German law. The amendment aims in particular to reduce the negative impact of plastics and microplastics on the environment and the oceans. The draft bill aims at a further ecological development of the Packaging Act (VerpackG) and thus integrates the new requirements of the EU directives as much as possible “one-to-one” into national law.
I. Expansion of the deposit obligation to almost all single-use plastic beverage bottles and beverage cans (§31 Packaging Act / VerpackG)
The legal changes provide that in the future almost all single-use plastic beverage bottles and beverage cans with a filling volume between 0.1l and 3.0l are subject to a deposit. In general, this regulation is to apply from 1 January 2022. For milk, mixed milk beverages and other drinkable milk products filled in single-use plastic beverage bottles or beverage cans, however, the draft bill does not provide for a deposit to be made until 1 January 2024. Failure to comply with the obligations resulting from Section 31 of the Packaging Act (VerpackG) may result in a fine of up to € 100,000 per individual case.
Please note: The deposit obligation is fulfilled as before and a distinction is made between manufacturer and distributor obligations. A manufacturer of beverage packaging that is subject to a deposit is subject to the obligation to collect a deposit, the labeling requirement and the system participation obligation (e.g. with the DPG) according to §31 Packaging Act (VerpackG). Distributors of single-use plastic beverage bottles and beverage cans subject to a deposit are obliged to take them back free of charge, to refund the deposit and to dispose of all packaging that has been taken back.
II. New obligations for single-use plastic packaging, single-use plastic food packaging and single-use plastic beverage bottles (§3 (4a, 4b & 4c))
- Single-use plastic packaging
Single-use plastic packaging that – according to the Single-use plastic ban ordinance (Einwegkunststoffverbotsverordnung) that comes into effect on 3 July 2021 - are prohibited (e.g. food containers made of expanded polystyrene, products made of oxo-degradable plastic), may not be placed on the market even according to the current draft of the Packaging Act.
- Single-use plastic food packaging:
In accordance with the new §33 of the Packaging Act (VerpackG), from 1 January 2023, all final distributors of single-use plastic food packaging and single-use beverage cups (e.g. retailers, catering establishments) will be obliged to offer the respective product for sale in returnable packaging at the point of sale. The offer of the goods in one-way packaging must correspond exactly to that of the reusable packaging. In addition, the goods in reusable packaging must not be made unattractive for the end consumer through a higher price or poorer supply conditions.
The term ‘single-use plastic food packaging‘ is defined in § 3 (4b) of the Packaging Act (VerpackG) as single-use plastic packaging for food (e.g. containers such as boxes with or without lids, for food) that (1) are intended to be consumed directly on site or as take-away meals , (2) can usually be consumed out of the packaging and (3) can be consumed without further preparation such as boiling, simmering or heating. The definition does not include beverage packaging, beverage cups, plates, bags and film packaging such as wrappers with food contents.
The "relief for small companies" taken into account in § 34 of the Packaging Act (VerpackG) provides that final distributors with no more than five employees and a sales area of max. 80 sq. m. are not subject to this obligation. Another special regulation exists for vending machines in Section 34 (2) of the Packaging Act (VerpackG).
- Single-use plastic beverage bottles:
From 1 January 2025, single-use plastic beverage bottles, including their closures and lids, with a filling volume of up to 3.0 liters, which mainly consist of polyethylene terephthalate, may only be placed on the market if they each consist of at least 25 percent by mass of recycled plastic. From 1 January 2030, all single-use plastic beverage bottles (regardless of the plastic used), including their caps and lids, with a filling volume of up to 3.0 liters may only be placed on the market if they each consist of at least 30 percent by mass of recycled plastic . Whether the term “bottle” only includes beverage containers with a narrow neck or mouth is not specified further. The law only refers to a bottle shape.
The obligation to use a minimum proportion of recyclate in one-way plastic beverage bottles can also be met by manufacturers if the total mass of the one-way plastic beverage bottles placed on the market by them in a calendar year has a corresponding proportion of recycled plastic.
Bottle bodies made of glass or metal and single-use plastic beverage bottles that are used for liquid food for special medical purposes are exempt from the provisions on the minimum proportion of recycled material.
In the event of a breach of the obligations from § 30a, a fine of up to € 10,000 per individual case is provided in accordance with § 36 (1) No. 20a of the Packaging Act (VerpackG).
III. Extension of the manufacturer's obligations for registration
From July 1, 2022, according to § 9 (1) of the Packaging Act (VerpackG), it is no longer just the manufacturers of packaging subject to system participation (§ 7 (1) sentence 1 of the Packaging Act / VerpackG) that are obliged to register with the Central Agency, but all manufacturers placing the packaging commercially on the market for the first time (§ 3 (14) of the Packaging Act / VerpackG). Among other things, information on the types of packaging must be provided during registration (§ 9, (2), Sentence 6, Packaging Act / VerpackG). The current draft version also provides in § 7 (2) Sentence 3 of the Packaging Act (VerpackG) that all distributors of service packaging - regardless of whether they have delegated the obligation to participate in the system to the pre-distributor – also need to register with the Central Agency in accordance with § 9 of the Packaging Act (VerpackG).
Ultimately, manufacturers of reusable packaging, one-way beverage packaging subject to a deposit and transport packaging will also be obliged to register in the future. Manufacturers who do not comply with this registration requirement face a fine of up to € 100,000 per individual case.
IV. Electronic marketplaces and fulfillment service providers are obliged to monitor the system participation of goods sold
The increased volume of packaged goods and goods with insufficient system participation from abroad, most of which are sold via electronic platforms, makes it necessary to expand the previous sales ban in §7 (7) of the Packaging Act (VerpackG) and § 9 (5) of the Packaging Act (VerpackG). According to the planned amendment to the law, electronic marketplaces (see definition in § 3 (14b) of the Packaging Act / VerpackG) may no longer allow packaging that is subject to system participation to be offered for sale if the manufacturer has not participated in a system and is not in the Central Agency’s Packaging Register are registered. The same applies to so-called fulfillment service providers, which are defined for the first time in § 3 (14c) of the Packaging Act / Packaging Act. These regulations are expected to come into force on July 1, 2022. Violations can be punished with a fine of up to 100,000 € / individual case.
V. Authorisation of third parties and authorised persons to report data to the Central Agency („Zentrale Stelle“) (§35 Packaging Act / VerpackG))
The personal registration and data reporting requirements for distributors remain unchanged. A third party commissioning for this is still not permitted. New is that companies without a German branch can commission an authorised representative to fulfill their obligations under the Packaging Act (VerpackG) - with the exception of registration with the Central Agency’s Packaging Register (in accordance with § 9 of the Packaging Act / VerpackG). This change is expected to take effect on 3 July 2021..
VI. Warning notice for disposable plastic from July 2021
In the current draft amendment, the EU warning for disposable plastics (hygiene products such as sanitary towels, tampons and tampon applicators as well as wet wipes; plastic-containing filters for use in tobacco products; disposable beverage cups) has not yet been taken into account. This is intended to inform consumers about the presence of plastic, about the avoidable types of disposal and the resulting negative effects of littering or improper disposal on the environment.
The regulation is to apply from 3 July 2021. For packaging that is placed on the market before 4 July 2022, a transition period is granted during which you can temporarily attach non-removable stickers to your products. The sell-out of unmarked products by dealers and manufacturers remains possible after this date.
*Disclaimer:
* References to the Packaging Act (VerpackG) refer to the new draft bill
** The draft bill was submitted to the cabinet after the vote within the federal government and passed on 20 January 2021. This begins the parliamentary legislative process in which the Bundestag and Bundesrat decide on the draft.