In a development that has largely gone under the radar, the European Commission has proposed a new regulation on packaging and packaging waste. I know it sounds dull, but the reality is that it will result in many quirky, distinctive and frivolous-but-lovable characteristics vanish from our shelves over the coming years.

The regulation's stated aim is to deal with the increase in packaging waste generated in the EU (which is VAST), harmonise the internal market for packaging, and boost the circular economy.

It has three key objectives:

• to prevent the generation of packaging waste: reduce it in quantity, restrict unnecessary packaging and promote reusable and refillable packaging solutions;
• to boost high quality (‘closed loop') recycling: make all packaging on the EU market recyclable in an economically viable way by 2030; and
• to reduce the need for primary natural resources and create a well-functioning market for secondary raw materials, increasing the use of recycled plastics in packaging through mandatory targets.

The headline target is to reduce packaging waste by 15% per head by 2040, compared with 2018. 

To foster reuse or refill of packaging, companies will be required to offer a certain percentage of their products to consumers in reusable or refillable packaging. 

The press release also points out that there will be “some standardisation of packaging formats” (see later) and clear labelling of reusable packaging.

The new rules will ban certain forms of packaging, for example single-use packaging for food and beverages when consumed inside restaurants and cafes, single-use packaging for fruits and vegetables, miniature shampoo bottles and other miniature packaging in hotels. 

Many measures aim to make packaging fully recyclable by 2030. This includes:

• setting design criteria for packaging
• creating mandatory deposit return systems for plastic bottles and aluminium cans
• making it clear which very limited types of packaging must be compostable so that consumers can throw these to biowaste.

There will also be mandatory rates of recycled content that producers must include in new plastic packaging. The proposal also aims to clear up confusion on which packaging belongs to which recycling bin. Every piece of packaging will carry a label showing what the packaging is made of and in which waste stream it should go. Waste collection containers will carry the same labels. The same symbols will be used everywhere in the EU.

The Council recently agreed its general approach which will serve as a mandate for negotiations with the European Parliament on the final shape of the legislation. The outcome of the negotiations will have to be formally adopted by the Council and the Parliament.

So what does all this mean?

The aim behind the proposed regulations are very laudable, but it is likely to mean row upon row of homogenised, anodyne packaging.

The legislation includes a wide definition of “packaging” - Article 3(1) defines it as items of any materials that are intended to be used for the containment, protection, handling, delivery or presentation of products and that can be differentiated into packaging formats based on their function, material and design. So, it will include bottles as well as outer packaging.

Packaging with characteristics that are only aimed to increase the perceived volume of the product, including double walls, false bottoms, and unnecessary layers, shall not be placed on the market, unless the packaging design is subject to geographical indications of origin protected under EU legislation. 

These criteria are drafted narrowly and do not accommodate the need to differentiate a product from other products on the market. As mentioned, the only exception is for packaging designs protected by geographical indications. The Council recently proposed additional exceptions for existing registered and unregistered designs and trade marks (but not future ones). These are narrow exceptions and could create a problem for any supplier of goods in more decorative and elaborate packaging, such as for cosmetics, perfume or drinks.

Article 9(2) also contains a prohibition on "characteristics that are only aimed to increase the perceived volume of the product…". This is quite vague and there will need to be guidance on this.

The measures would apply equally to domestic and imported products. European and non-European producers would face the same requirements, so UK producers are caught by the rules if they sell products into the EU.

The rules are still in draft form and are being ironed out, but the direction of travel is clear: smaller, lighter and less wasteful packaging will be the order of the day.

How to demonstrate compliance

The new rules foresee that a conformity assessment is carried out for packaging which comes within their scope.  In addition, manufacturers will need to draw up technical documentation to demonstrate compliance. The new system relies on self-certification, so there will be no need to obtain third party approval. 

And what are the sanctions if we don’t?

In the main, Member States will implement enforcement procedures and sanctions. 

Member States must provide for penalties that are effective, proportionate and dissuasive. An investigation can follow from a customer complaint, a competitor complaint, or an investigation by a national regulator.

There are also obligations on member states to establish a register of conformity.

And what can do you do about it?

Producers should review their IP portfolios to ensure that their packaging is compliant, but also to ensure they register any new designs and trademarks asap, and try to get creative within the new rules to ensure their branded product will stand out and remain distinctive for years to come.