Implementation of the Single-use Plastics Directive or how to create a legislative hotchpotch

Read in the following an article by Katharina Hinse, Environmental Affairs Manager at European Bioplastics (EUBP).  

I thought plastic straws, plastic cutlery, and EPS take-away boxes were banned this summer. So why do I still find them everywhere? Well, as always, it’s complicated: Even though the Directive (EU 2019/904) on the reduction of the impact of certain plastic products on the environment, better known asSingle-Use Plastics Directive, or SUPD, was passed in June 2019 and came into force on 3 July 2021, not all EU Member States have implemented the Directive yet.   

They cannot be blamed for this alone, as there have been significant delays in providing necessary documents on the part of the EU. Article 12 of the SUPD, for example, states that by 2 July 2020, the European Commission should have published SUPD Guidelines to facilitate the directive’s implementation. In consultation with Member States, amongst other things, the Commission developed examples of what is to be considered a single-use plastic product. These guidelines – quite essential for the design of the national laws – were officially published on 31 May 2021, almost a year later than promised and only about a month before the Directive formally came into effect.  

The result is a very unharmonized state of implementation across the EU, leading to confusion among consumers, policy makers, and within the industry. Furthermore, deviating national legislative measures are threatening the internal market.  

The most prominent features of the SUPD are certainly the bans of several single-use plastic items that are most frequently found on beaches, including:    

• Cotton bud sticks, except those for medical use
• Cutlery (forks, knives, spoons, chopsticks)
• Plates
• Straws, except those for medical use
• Beverage stirrers
• Balloon sticks
• Expanded polystyrene food containers, beverages containers and cups.

As those product restrictions leave little room for Members States to deviate, they are already in force in several countries. However, products already on the market may still be sold or distributed after 3 July 2021 without any deadline. This is why we still find plastic straws in our drinks or take-away food in EPS-boxes even in Member States where the restrictions already apply. 

A less stringent regulation is given in Article 4 on consumption reduction. Member States shall take measures to reduce the consumption of single-use plastic cups and food containers. These measures shall achieve a “measurable quantitative reduction” by 2026 compared to 2022. Measures may include national consumption reduction targets, promotion of re-usable alternatives or marketing restrictions. Member States will have to notify the measures to the EU and report on their compliance. There is still a lack of promising – and especially transnational – examples to reach these goals at Member State level. Some opt for levies on single-use cups, such as Ireland with its planned “Latte levy”, others, like Germany for example, want to promote reusable containers and initiatives for deposit-based to-go-systems. Belgium is discussing to ban single-use cups and food packaging altogether in 2022.  

The Commission Implementing Regulation on the marking requirements was also not received with much enthusiasm by large parts of the industry when it was published in December 2020. It requires printing pictograms of dying turtles on sanitary pads, tampons, and applicators as well as on wet wipes, tobacco products, and cups for beverages, if they contain plastic. What the Commission counts as “plastic”, however, one would only know for sure by 31 May 2021, when the definition was officially published in the guidelines. It made the rules even more confusing: If the product contains PHA or PLA, a logo is needed. If it contains lyocell, no logo is needed. The reasoning behind that is that viscose and lyocell are considered natural polymers that have not been chemically modified, whereas PHA is considered a natural polymer that has been chemically modified and thus is defined as plastic.   

In particular, the labelling of cups has resulted in a negative echo within the packaging industry. Some of the main complaints are that cups would not be under the most littered items found on beaches and that the label does not give any recommendation on disposal or recycling options. EUBP, too, supports the criticism as the labels neither differentiate between conventional and biodegradable/compostable plastics, nor do they give disposal recommendations for the latter, i.e. via organic recycling.  

On a positive note, though, the SUPD finally includes a ban of products made from oxo-degradable plastics. Those are defined as “plastic materials that include additives which, through oxidation, lead to the fragmentation of the plastic material into micro-fragments or to chemical decomposition”. Yet, oxo-degradable plastics do not actually biodegrade and Member States shall prohibit their placement on the market.  

SUPD’s specific impact on the bioplastics industry  

The entire directive does not differentiate between conventional plastics, bio-based plastics, or biodegradable and compostable plastics.   

In its Guidance Document, and in the corresponding Q&A section, the EU Commission clarifies that biodegradable/compostable as well as bio-based plastics are considered as plastic und thus fall under the scope of the SUPD. That means that e.g. plates made of compostable plastics are banned, and that plates made of paper or cardboard with a (biodegradable and compostable) plastic coating are banned as well. Re-usable plates or plates made of paper/cardboard or bagasse without plastic are still allowed.  

European Bioplastics would have welcomed a much more differentiated approach that takes sufficient account of the role of bio-based and biodegradable/compostable plastics in the circular economy. No evidence has been provided that any biodegradable and compostable bioplastics pose a damage to the environment, are frequently littered or are causing a greater resource loss. The fact that the use of biodegradable and compostable materials, especially in food-contact applications, helps to improve the recovery of other organic wastes (food, garden) while avoiding plastic contamination is ignored.   

Some Member States however are applying a more positive interpretation of the European regulation. They acknowledge the benefits of biodegradable and compostable plastics and have drafted a series of promising legal documents.  

E.g. Italy, on one hand is transposing the basic restrictions of the SUPD but on the other hand is excluding compostable plastics from the bans. EN 13432-certified compostable plastics with a defined bio-based content may be marketed, provided the use of reusable alternatives to food contact-items as listed in Annex B is not possible. This exemption refers to the second paragraph of Article 11 of the SUPD on food hygiene and safety. Similarly, Slovakia, in a draft amendment to its national Waste Act, provides that for food containers and cups for beverages a biodegradable alternative may be offered – besides opting for a fee or a reusable solution.   

Due to this incoherent legislative landscape, which is emerging, an early review of the Directive is becoming more and more likely. Officially planned for 2027, this review will include an assessment of the scientific and technical progress concerning criteria or a standard for biodegradability in the marine environment applicable to single-use plastic products. This gives hope that the EU will not completely stall innovation in the sustainable packaging sector.  

For more information on the SUPD also visit the EUBP website.