UAS Directive, Leg. 196/21. New rules on single-use plastic items from 14.1.22

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Legislative Decree. 196/21-implementing theSingle-Use Plastics Directive ( SUP, 2019/904/EC)-bans the placing on the market of certain single-use plastic items (e.g., plates and containers), oxo-degradable plastic products (with additives capable of fragmenting or decomposing them), and fishing gear containing plastics, as of 14.1.22. (1)

The national legislation also introduces incentives for the purchase and use of substitute products, reduction targets and marking requirements for other categories of plastic items. In addition to specifying the criteria for extended producer responsibility and defining the penalty regime. Two notable exemptions, however, from the EU directive are noted. Focus on plastics and MOCAs.

1) EU BANS AND ITALIAN DEROGATIONS

1.1) Prohibited items

The bans cover a range of commonly used items such as cutlery (forks, knives, spoons, chopsticks), plates, straws, beverage stirrers, food and beverage containers, and expanded polystyrene cups and glasses (Legislative Decree 196/21, Article 5.1 and Annex, Part B. See note 2).

A transitional regime is established in favor of products for which operators can demonstrate market introduction on a date prior to the decree’s entry into force (14.1.22), which may be marketed until stocks are exhausted (Art. 5.2).

1.2) Italian exemption to plastic coatings.

A first derogation (all’) Italian concerns the definition of ‘plastic’ which in Leg. 196/21 excludes ‘plastic coatings weighing less than 10 percent of the totalweight of the product, which do not constitute a main structural component of the finished products.’ As well as paints and adhesives with similar characteristics.

In this way, plastic-coated cardboard plates, to cite one example, are exempted from the ban on the sale and use of single-use plastic plates. Although they too are in fact intended to be excluded from the definition of plastic (Art. 3.1.a).

1.3) Italian exceptions to the EU ban.

Only in Italy, as foretold, the above prohibition does not apply to single-use items made of biodegradable and compostable plastic-if certified as complying with European standards UNI EN 13432 or UNI EN 14995 and produced with at least 40 percent renewable raw material (60 percent, as of 1.1.24)-when the following assumptions occur:

(a) ‘where the use of reusable alternatives to single-use plastic products intended to come into contact with food is not possible.’ This (unduly) favors bioplastics to paper, cardboard and other materials (e.g., bamboo, banana leaves, etc.),

(b) where use is planned in ‘controlled circuits‘ that deliver waste to the public waste collection service ‘in an ordinary and stable manner‘ (e.g., canteens, RSAs),

(c) if the alternatives ‘in view of the specific circumstances of time and place do not provide adequate guarantees in terms of hygiene and safety’,

(d) ‘inview of the particular type of food or drink‘. Unclear concept, which could perhaps come to refer to hypotheses of products intended for individuals with food allergies and/or intolerances, i.e., intended for a special diet (ex EU reg. 609/13)

(e) ‘in circumstances where a large number of people are present‘. Events that, on the contrary, should command the utmost attention to the risk of plastic waste dispersal,

(f) ‘if the environmental impact of the reusable product is worse than single-use biodegradable and compostable alternatives, based on a life cycle analysis by the manufacturer.’ Incredible but true (Art. 5.3).

2) REDUCTION OF CONSUMPTION

2.1) Categories of UAS to be reduced

Reducing the consumption of single-use plastic items must also be directed toward other categories of UAS. First and foremost, disposable cups and mugs, which the European legislature has shamefully removed from the ban. But also caps and lids, food containers intended for immediate consumption (on the spot or take-away), without the need for further preparation (e.g., cooking, boiling or heating). (3)

The goal of achieving a measurable ‘quantifiable reduction‘ in the consumption of such products by 2026, compared with 2022, is to be pursued through a range of activities including flow monitoring, development and application of production and distribution processes, and innovative technologies.

2.2) Research, development and experimentation

Research, development, and experimentation should be expressed in durable and reusable products, water and beverages on tap, and any other useful solutions, also taking into account positive experiences in other EU countries.

The ministers of ecological transition and economic development and the autonomous regions and provinces of Trento and Bolzano will enter into agreements and program contracts for this purpose with public bodies, enterprises, public or private entities and trade associations (Art. 4).

2.3) Incentives for replacement of UAS.

A 20 percent tax credit – up to €10,000 per operator, for the total amount of €3m/year, from 2022 to 2024 – is established in favor of companies that purchase and use substitute products to Single-Use Plastics (Art. 4.7).

Replacement products subject to the tax credit must be reusable, i.e., made from biodegradable or compostable material certified in accordance with the UNI EN 13432:2002 standard.

3) PRODUCT REQUIREMENTS AND MARKING

3.1) Product requirements (Art. 6)

New design and manufacturing requirements are also being introduced for some products in the medium and long term:

– containers with plastic caps and lids may be used–as of 3.7.24, unless stocks of products already placed on the market are exhausted–only if they are made so that they remain attached to the containers for the entire intended duration of the product’s use. Excluding only plastic seals on metal caps and lids,

– beverage bottles made with polyethylene terephthalate as the main component (e.g., PET bottles) will have to contain at least 25 percent recycled plastic from 2025, 30 percent from 2030 (Article 6).

3.2) Marking requirements (Art. 7)

Marking requirements are established for some single-use plastic products in Part D of the Annex. Plastic cups and glasses, among others. (4) The marking must be clearly legible and indelible, as required by reg. EU 2020/2151 – and indicate to the consumer:

– The waste management methods consistent with the collection systems in use,

– The presence of plastic in the product,

– the negative impact on the environment of dispersal or other improper forms of waste disposal (Article 7).

4) Extended Producer Responsibility (EPR)

ExtendedProducer Responsibility (EPR) involves the participation of producers, ‘inproportion to the weight of the plastic component to that of the product‘, in the costs related to:

– Consumer awareness measures (formerly Article 10),

– waste collection for such products delivered to public collection systems, including the infrastructure and its operation and the subsequent transport and treatment of such waste,

– Removal of waste dispersed by such products and its subsequent transport and treatment.

The management of waste from single-use plastic products listed in Part E, Section I of the Annex (where not already in place) will have to be organized by 31.12.24 in the packaging systems referred to in Leg. 152/06. That is, by 5.1.23, under appropriate systems to be established by decree (See notes 5 and 6).

Dario Dongo and Luca Foltran

Notes

(1) Legislative Decree. 8.11.21 n. 196. Implementation of Directive (EU) 2019/904, of the European Parliament and of the Council of June 5, 2019 on reducing the impact of certain plastic products on the environment. In OJ 30.11.21, General Series no. 285, Ordinary Supplement no. 41. https://bit.ly/31bzmOp

(2) The bans on placing on the market concern: 1) cotton swabs, 2) cutlery (forks, knives, spoons, chopsticks), 3) dishes, 4) straws (with some exemptions), 5) drink stirrers, 6) rods to attach to support balloons, (7) expanded polystyrene food containers, that is, containers such as boxes with or without lids, used for food that jointly meet the following criteria: 
(a) they are intended for immediate consumption, either on the spot or to take away, (b) they are generally consumed directly from the container, (c) they are ready for consumption without further preparation, e.g., cooking, boiling, or heating, including containers for fast food-type foods or other meals ready for immediate consumption, except for beverage containers, plates, packages, and wrappers containing food, (8) beverage containers made of expanded polystyrene and their caps and lids, (9) beverage cups or glasses made of expanded polystyrene and their caps and lids (d.Legislative Decree 196/21, Annex, Part B. Ref. Article 5)

(3) Single-use plastic products affected by consumption reduction targets:
(1) cups or glasses for beverages, including their caps and lids, (2) food containers, i.e., containers such as boxes with or without lids, used for food that jointly meet the following criteria: (a) intended for immediate consumption, either on the spot or for take-away, (b) generally consumed directly from the container, and (c) ready for consumption without further preparation, e.g., cooking, boiling, or heating, including food containers of the type fast food or other meals ready for immediate consumption, with the exception of beverage containers, plates, packages and wrappers containing food (Legislative Decree 196/21, Annex, Part A. Ref. Article 4)

(4) Single-use plastic products subject to marking requirements: (1) sanitary pads and tampon applicators, 2) Wet wipes, which are pre-moistened wipes for personal hygiene and household use, 3) Tobacco products with filters and filters marketed in combination with tobacco products, 4) beverage cups or glasses (Legislative Decree 196/21, Annex, Part D)

(5) Disposable plastic products subject to extended producer responsibility: (1) food containers, i.e., containers such as boxes (with or without lids), used for food, that jointly meet the following criteria: (a) are intended for immediate consumption, either on the spot or take-away, (b) are generally consumed directly from the container, and (c) are ready for consumption without further preparation (e.g., cooking, boiling, or heating), including those for fast food or other meals ready for immediate consumption (except for beverage containers, plates, packages and wrappers containing food), (2) packages and wrappers made of flexible material that contain food for immediate consumption directly from the package (or wrapper) without further preparation, (3) beverage containers with a capacity of up to three liters, i.e., containers used to hold liquids (e.g., beverage bottles and their caps and lids), and composite beverage packaging and their caps and lids. Excluding glass or metal beverage containers with plastic caps and lids, 4) beverage cups or glasses, including their caps and lids, 5) plastic bags of light material referred to in Article 3.1-quater of dir. 94/62/EC (d.lgs. 196/21, Annex, Part E, Section I. Ref. art. 8.1)

(6) Single-use plastic products subject to extended producer responsibility: 1) Wet wipes, that is, pre-moistened wipes for personal hygiene and household use, 2) Balloons, except those for industrial or other professional uses and applications that are not distributed to consumers (Legislative Decree 196/21, Annex, Part E, Section II. Ref. art. 8, paragraphs 2 and 3)

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Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.

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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.