New rules on the environmental labeling of packaging-which see Italy leading the way in the EU, on the circular economy front-are finally being implemented, effective 1.1.23.
This concludes the long transition period given to manufacturers and professional users to tell consumers the nature of packaging and how to separate it.
In view of the effective implementation of the regulations under consideration, it seems useful to clarify some passages regarding the use of ‘digital tools‘ of information, as well as the packaging and parts of packaging where to affix the prescribed news.
1) Environmental labeling of packaging. Foreword
Packaging material identification codes, developed over the years through technical standards, were harmonized at the European level by Decision 1997/129/EC.
A quarter of a century , however, has not been enough for the European Commission to introduce uniform environmental labeling rules for packaging.
The wide variety of separate collection systems and recycling and treatment facilities, moreover, complicates communication even within member states.
2) Environmental labels in Italy
The Italian legislature anticipated, in this respect, the foreseeable developments in the c.d. Circular Economy Package. By introducing the obligation, through d.lgs. 116/2020, to label packaging with useful information for the identification and classification of their materials. (1)
Such news is useful for proper disposal in recycling bins but also, for discerning consumAtors, for choosing the most ‘sustainable’ packaging. (2) And the Ministry of Ecological Transition (MiTE), in its circular 15.3.22, clarified its application. (3)
3) Label information or QR-code?
The question arises again as to whether the environmental label can be replaced by ‘electronic tools‘ such as QR-codes, barcodes or links that refer to websites, or whether it is necessary to report any information on the label. Or again, where even these avenues are not viable, whether news can be provided exclusively through websites.
The normative text on closer inspection reports that ‘all packaging must be labeled (…)’. (4) MiTE on the other hand, in its Circular 52445/2021, indicates digital information as ‘essential‘ to ensure correct and complete communication on small (capacity < 125 ml or larger area < 25 cm2), import or multilingual packaging.
3.1) Digital label, informal waiver
In general terms, according to MITE, ‘it is permissible to favor tools for digitizing information (e.g., APPs, QR codes, websites), consistent with the process of technological innovation and simplification.’ In practice, a ministerial circular suggested operators to disapply a legal provision.
The European Commission on the other hand, in commenting on the ministerial guidelines notified to Brussels by DM 13.10.22 no. 114, specifically requested that the possibility of using digital channels be made explicit in the legislative text. The waiver can therefore be considered approved, albeit pending formalization. (5)
3.2) QR-codes and ‘digitization tools‘, how?
The ‘simplification‘ allowed in Rome and Brussels will certainly not make life easier for consumers who, when in doubt about how to properly dispose of individual packages and/or packaging, will have to use a smartphone to decipher a QR code or consult a website.
In any case, if operators intend to use QR codes or other digital systems to communicate mandatory information, they will have to provide clear information on the label on how to access this information. In accordance with general information transparency requirements. (6)
The mere affixing of a QR or barcode, without explanation of their specific function of providing useful information for the identification and management of packaging materials after their use, is therefore not suitable for fulfilling environmental labeling requirements.
4) Primary and secondary packaging, where to affix environmental labeling?
The placement of environmental labeling also warrants consideration in the face of widespread doubt as to whether it is mandatory:
- Provide the information on the outer packaging only (e.g., cardboard used as secondary packaging) i.e.
- affix them to the individual components of the package (including the primary packaging, e.g., film wrapping the food).
4.1) Criterion of ‘manual separation’
The Guidelines on Environmental Labeling of Packaging adopted by MiTE on 16.3.22 (3) indicate that, in cases of packaging consisting of several components, two hypotheses must be distinguished. Therefore, the criterion of manual separation is applied in the following terms.
4.1.1) Packages with manually separable parts
Packaging consisting of parts that can be separated by hand (e.g., primary plastic packaging, secondary cardboard packaging) must have special markings for each part so that the end consumer can separate them and direct them to the appropriate containers.
Therefore, it is necessary to report in relation to each manually separable part:
(a) type of packaging (written description or graphic representation) of the different components that can be separated manually, with reference for each to
(b) alphanumeric code identifying packaging materials, (7)
(c) family of material(s), and
(d) collection directions.
‘When it is not possible toindicate the identification code on each individual component, such as for reasons of space or other technologically significant limitations, they can be marked on the main body or presentation packaging.’
4.1.2) Packaging with non-separable components.
If the packaging consists of parts that cannot be separated by hand (e.g., plastic film glued onto a cardboard tray), it is suggested to report instead:
- the words ‘Collection (family of materials prevailing by weight)’, or otherwise indicate
- the family of materials prevailing by weight, preceded by the words ‘Separate collection‘. And in any case
- Invite the consumer to check the regulations of their municipality.
5) Implementation date and transition period
DL 30.12.21 no. 228 (converted by Law 25.2.22 No. 15) suspended the application of the environmental labeling requirements under consideration until Dec. 31.22.
Packaging that does not comply with the above rules marketed or labeled before 1.1.23 may still be distributed until stocks are exhausted.
Dario Dongo and Giulia Torre
Notes
(1) Dario Dongo. Legislative Decree. 116/20, Food packaging labeling. Inapplicable standards. GIFT (Great Italian Food Trade). 3.10.20
(2)
‘The absolute most sustainable packaging is that which is notthere’ (Stanislao Fabbrino).
Policy and government should therefore promote, with effective incentives, the distribution of bulk products and reusable containers
(3) Dario Dongo, Giulia Torre. Environmental packaging labeling, the ministerial ABC. GIFT (Great Italian Food Trade). 19.5.22
(4) Legislative Decree. 116/2020, Art. 3.3, amending Leg. 152/2006, Art. 219.5
(5) The Legislative Decree. 116/2020, moreover, was not even notified to Brussels as it should have been (see footnote 1). Therefore, the legitimacy of the same preceptive rule is questionable, due to violation of dir. 2015/1535/EU
(6) Cf. Consumer Code, d.lgs. 206/2005, as amended, implementing Directive 2005/29/EC. That directive has since been repealed by recent EU dir. 2019/2161, c.d. Omnibus directive, which the Italian Parliament delegated the government to transpose with the European delegation law 2021 (with serious delay compared to the deadline set on 29.11.21, in view of the application of the new rules in all member states by 28.5.22). EU dir. 2019/2161 may moreover qualify as ”self-executing‘ and come already applied, regardless of its actual implementation, based on established case law of the European Court of Justice (ECJ. See judgment 5.2.1963 in Case 26-62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Dutch Tax Administration)
(7) Material coding shall follow the criteria in Decision 129/1997/EC or the applicable ISO EN UNI technical standards. See footnote 3
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in law, master in European Food Law, she deals with agro-food, veterinary and agricultural legislation. She is a PhD in agrisystem.
