Blog: Promoting the circular economy: product regulation and Brexit – Lexology

Political commitments to greater environmental sustainability are translating into policies and legislation in the EU and UK to encourage circular economies: switching from the linear ‘take-make-consume-dispose’ model for products to ‘closed loop’ industrial processes.

2020 UK implementation of EU legislation

Legislating to deal with waste and the environment is not new and current initiatives on the circular economy build on other work done in recent years.

In 2018 four EU amending directives came into force, requiring transposition into national law by July 2020 of amendments to the 2008 Waste Framework Directive, the Landfill Directive 1999, the Packaging Waste Directive 1994, the End-of-Life Vehicles Directive 2000, the Batteries Directive 2006 and the Waste Electrical and Electronic Equipment Directive 2012. Member states are required to take steps to introduce a waste hierarchy, to encourage reuse and recycling of materials and to ensure recyclable waste is not sent to landfill (targets on recycling municipal waste are 55% by 2025, rising to 65% by 2035 and for packaging 65% by 2025 and 70% by 2030). Landfill is targeted to reduce to 10% of municipal waste by 2035.

In July this year, the UK Government and devolved administrations in Scotland, Wales and Northern Ireland committed to the implementation of the amending directives, through a mixture of legislative and non-legislative action. The Waste (Circular Economy) (Amendment) Regulations 2020 came into force on 1 October 2020 and amended a raft of primary and secondary legislation on waste, to cross-refer to the updated EU legislation and its requirements.

Promoting the circular economy remains on the EU agenda

The European Green Deal, launched in December 2019, is an overarching initiative to encourage economic growth whilst tackling sustainability issues. It has been followed by the Commission’s Circular Economy Action Plan 2020. In September 2020 the Commission released a sustainable products initiative – ‘Inception Impact Assessment Roadmap’ – intended to drive environmental high performance through sustainability principles and requirements for all products and services put onto the EU market.

The circular economy remains on the EU agenda and through a range of plans and initiatives, the Commission has prioritised the following areas: excessive packaging, recovering value from waste, ending the export of waste to non-EU territories, batteries, plastics, construction and ICT equipment, extending the ecodesign directive to non-energy-related products and improving consumer information.

Further EU legislation

The 2019 Single-Use Plastic Directive requires member states to: reduce consumption of food containers and cups; ban products such as cutlery, plates, straws, stirrers and polystyrene food containers; introduce extended producer responsibility for subsequent use and disposal of the products; and introduce separate collection for the purpose of recycling for 77% of products by 2025/90% by 2029. Member states must also introduce penalties for non-compliance. The implementation deadline is July 2021.

In May this year, the Commission also set out plans for a new regulation, in the first half of 2021, updating maximum waste concentration limit values for persistent organic pollutants, which pose particular risks to the environment and health as they concentrate in food chains.

Given the EU’s policy focus, additional legislation in coming years to further promote a circular economy seems likely.

Brexit, devolution and the circular economy in the UK

Having left the EU on 31 January 2020, the UK is currently in the transition period which ends on 31 December 2020. During 2020 the UK is treated as an EU member state in terms of the implementation and application of existing and new EU law. From 1 January 2021, existing EU-derived law related to waste and the promotion of a circular economy will continue to operate in the UK as retained domestic law.

The circular economy is on the agenda for UK policy makers as it is for the EU. The UK Government has a ‘resources and waste strategy’ which includes plans to tackle the ‘throw-away’/‘disposable’ mindset in relation to consumer goods and to support and strengthen options for re-use, re-manufacture, repair and recycling; and the devolved administrations have separate plans. In the consumer product context, repair of products raises some legitimate safety concerns, especially if the aim is to enable consumers to perform repairs themselves. That said, with a genuine desire to achieve sustainability, and to accept the potentially adverse impacts that goal might entail for profitability, these highly laudable and necessary structural changes are more than achievable.

Whilst implementation of the Single Use Plastics directive falls after the Brexit transition period and so will not become retained EU law, the UK Government has plans for similar measures.

Brexit is unlikely, therefore, to lead to any immediate or dramatic change in the UK domestic law related to the promotion of a circular economy.

However, looking to the future, this is a policy area in which Brexit on the one hand and devolution on the other raise the likelihood of divergence, in legislative and policy details and in substantive standards, as between the EU and UK nations.

Conclusion

Given the size of the EU market, and that this is a policy area in which the EU is a leading developer of new regulation, compliance with EU standards (which may be over-and-above UK requirements), is likely to continue to be a practical (and often legal) necessity for many businesses.

Product and packaging designers and manufacturers, as well as others in the supply chain, need to engage with this issue to ensure compliance with current legislation and to be ready for the inevitable further steps taken to promote a circular economy.

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