The guidelines of the UAS directive

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As of July 3, 2021, single-use plastic products marketed in the EU must comply with the requirements and restrictions set forth in Directive 2019/904 (or Single Use Plastic , SUP ) on reducing the impact of certain plastic products on the environment.
To help member states transpose this directive into their national laws and implement its requirements, the European Commission published guidelines on May 31, 2021, which provide important guidance on the scope of the measure and the nature of the plastics involved.

SUP requirements

The UAS directive imposes restrictions and sets requirements for

– Single-use plastic products that fall under specific categories listed in the different parts of the Annex to the UAS,

– all products made of oxo-degradable plastics, i.e., consisting of‘plastic materials that contain additives that, through oxidation, lead to fragmentation of the plastic material or chemical decomposition.’

In particular, the UAS imposes certain requirements and restrictions on single-use products.

Prohibition of placing on the market

The placing on the market of all products containing oxo-degradable plastic as well as single-use plastic products listed in Part B of the Annex to the UAS is prohibited.

The list includes plastic cutlery and plates, beverage stirrers, expanded polystyrene beverage containers, including their caps and lids.

Obligations to reduce consumption

Member States must achieve a reduction in the consumption of single-use plastic products listed in Part A of the Annex to the Directive. This section includes beverage cups (with associated caps and lids) and specific food containers (intended for immediate consumption, on the spot or take-away, consumed directly from the container and ready for consumption without further preparation, e.g., cooking, boiling, or heating).

To achieve this goal, member states can impose different measures, such as prohibiting the free provision of products at points of sale, forcing the replacement of such products with reusable alternatives, and even going so far as to ban their marketing altogether.

Design requirements

The lids and caps of single-use plastic products listed in Part C of the Annex (beverage containers with a capacity of up to three liters as well as composite beverage packaging) must be designed so that they remain attached to the container throughout their intended use.

Minimum recycled content

Disposable plastic products listed in Part F of the Annex to the UAS Directive (beverage bottles with a capacity of up to three liters, including their caps and lids) shall:

– contain at least 25 percent recycled plastic by 2025, for those made with polyethylene terephthalate as the main component (the classic PET bottles);

– contain at least 30 percent recycled plastic by 2030, regardless of the material involved.

Marking and labeling requirements

Products such as absorbents, sanitary pads and tampon applicators, wet wipes (for personal hygiene and household use), tobacco products with filters and filters marketed in combination with tobacco products as well as beverage cups, as listed in Part D of the Annex to the Directive, must be marked/labeled in accordance with Commission Implementing Regulation 2020/2151.

The goal is to inform consumers about the presence of plastic in the product, the negative impact of waste, and about appropriate disposal options. Implementing Regulation 2020/2151 imposes specific requirements on the formulation, design, size, color and position of the marking. It also allows manufacturers to meet the requirements through a sticker if single-use plastic products are marketed before July 4, 2022.

Extended producer responsibility

All member states must impose extended liability regimes on manufacturers of single-use plastic food containers, beverage cups, wet wipes, tobacco products, and all other products listed in Part E of the Annex.

Producers are required to cover the costs of collecting, transporting and treating their waste, as well as the costs of cleaning up waste and organizing awareness campaigns for the general public.

Recycling.

By 2025, member states must separately collect 77 percent of single-use plastic beverage bottles placed on the market (including their caps and lids) through the implementation of deposit return systems or separate collection targets for manufacturers.

The target is set at 90 percent by 2029.

Awareness raising

Member States must take steps to inform consumers of the reuse systems available to them and the waste management options available to them, as well as the impact of abandoning waste for all single-use plastic products listed in the annex to the UAS Directive and for fishing gear containing plastics.

What is a single-use plastic product

According to the, ‘single-use plastic product’ means a ‘product made wholly or partly of plastic and which is not conceived, designed or placed on the market to make multiple moves or rotations during its life being returned to a manufacturer for recharging or reused for the same purpose for which it was conceived’.

The term ‘plastic’ is defined as a‘material consisting of a polymer [come da definizione contenuta nel regolamento UE REACH 1907/2006 sulle sostanze chimiche], to which additives or other substances may have been added, and which can function as the main structural component of finished products, with the exception of natural polymers that have not been chemically modified’ (Directive 2019/904, Article 3(1)).

Definitions

The definitions just referred to suggest that a product is considered disposable plastic if the following conditions are met:

A product is made of ‘plastic’ when the materials used to make the product:
(i) are polymers or mixtures of polymers;
(ii) are different from natural (not chemically modified) polymers;
(iii) can function as the main structural component of the product.

The plastic product is ‘disposable’. The UAS directive applies only to plastic products that are designed to be disposed of after a use, or that consumers usually throw away after a use, even if the products are not initially designed/conceived as such. The guidelines provide various criteria for assessing whether a plastic product is single-use or multi-use, including whether the product is washable or can be emptied and refilled without damaging it.

Which polymers

To be considered a plastic product, an item must be made of polymers or mixtures of polymers. The UAS directive refers to the definition of polymer included in REACH 1907/2006, against the following criteria:
(i) more than 50 percent by weight of that substance is polymer molecules (molecules containing a sequence of at least 3 monomer units, having a covalent bond with at least one other monomer unit or other reactant); and
(ii) the amount of polymer molecules having the same molecular weight must be less than 50 percent by weight of the substance.

Polymers will be considered plastic materials unless they are ‘natural’ and ‘not chemically modified.’
Article 3(1) of the Directive defines plastics as the “material […] that can function as the main structural component of finished products.” The aspect related to the ability to function as a major structural component of finished products relates to the definition of plastics and not to the definition of a single-use plastic product. Therefore, in the context of the definition of plastic, this criterion should be understood as a generic concept. Since Article 3(1) does not in any way specify or limit the type of finished product or the amount of polymer, in principle a wide range of polymers can function as the main structural component of finished products.

‘Natural’ polymer

The Commission’s guidelines indicate that natural polymers should mean those that are the result of a polymerization process that took place in nature, regardless of the extraction process by which they were extracted.

Natural polymers are not necessarily naturally occurring substances. Cellulose and coating extracted from wood are natural polymers, while polymers derived from biosynthesis by artificial industrial fermentation are not.

Natural polymer ‘not chemically modified’

Even if the substances used in the products are natural polymers, they will be considered plastics if they are chemically modified (and the substances function as the main structural component of the products).

European Commission guidelines consider that whether or not a natural polymer is chemically modified during its production process depends on whether the chemical structure of the polymer resulting from the production process is different from that of the input polymer.

Following this reasoning, regenerated cellulose, e.g., in the form of viscose, lyocell, and cellulosic film, is not considered chemically modified because the outgoing polymer is not chemically modified relative to the incoming polymer. In contrast, cellulose acetate is considered a chemically modified polymer because the chemical changes in the polymer that occur during the manufacturing process remain present at the end of the process.

Cellulose and lignin

The guidelines also clarify that if chemical modifications result from reactions that occur only during the natural polymer extraction process, the polymers will not be considered chemically modified. The guidelines specifically mention cellulose and lignin being extracted as examples of such natural polymers.

This interpretation is in line with the impact assessment accompanying the European Commission’s proposal in which paper-based products without internal or external plastic coating were identified as available, more sustainable alternatives to single-use plastic products.

Polymer functions as a structural component of the product

The last condition to qualify as a plastic product is that the polymer (other than a natural polymer that has not been chemically modified) must function as a structural component of the product. The guidelines state that this condition is a generic concept and clarify that the definition of plastic does not limit or specify the type of product or the amount of polymer required to qualify as plastic.

Thus, for example, plastic-lined cardboard and plastic-lined paper cups are to be considered single-use plastic products. In contrast, the use of plastic paints, inks and adhesives does not make a product a plastic product. Therefore, a non-plastic finished product to which these materials are applied is not a single-use plastic product within the meaning of the UAS Directive.

Implementation of the UAS directive and national implementation

The requirements of the UAS Directive apply to products made of oxo-degradable plastic materials and single-use plastic products listed in the Annex of the Directive that are placed on the market on or after July 3, 2021. Unlike other EU product legislation, the UAS Directive defines the concept of placing on the market in the context of the particular member state and not the European Union as a whole. According to the directive,‘placing on the market‘ is‘the first making available of a product on the market of a member state.’

In general terms, this essentially means that single-use plastic products (listed in the annex) that are marketed in a given member state on or after July 3 will have to meet the requirements of the UAS Directive even if they had already been marketed in another member state (e.g., imported into the EU through another member state) prior to that date. The European Commission should publish a Guide providing further clarification on the concept of placing on the market for the purposes of the UAS Directive.

Member states should have taken the necessary measures to secure the above bans by July 3, 2021. Instead, the Italian legislature merely entrusted this task to the government, with the 2019-2020 European delegation law in effect since May this year.

Luca Foltran
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Expert in packaging and materials intended to come into contact with food substances and related legislative changes. He manages the information site foodcontactmaterials.info on European and extra-European regulations in the field of materials intended for contact with food.