Agency Agreed Positions and Interpretations - 360 Environmental

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Agency Agreed Positions and Interpretations - 360 Environmental

    Agreed positions and technical interpretations - packaging

    A summary of technical decisions for interpretation of producer responsibility for packaging

    D07_103 Version 5, 28 November 2008

Agreed positions and technical interpretations

     producer responsibility for packaging

This document consolidates and replaces guidance given in the following documents:

    ; Explanatory Notes

    ; Packaging Compendium (internal database)

    ; Summary of Methodologies and Protocols acknowledged by the Agencies and used

    by specific industry sectors to calculate packaging obligations

This document covers technical issues which are not dealt with in other, topic-specific

    guidance (such as Accreditation Application Guidance, Compliance Monitoring Guidance). Such guidance will not be repeated here. This document brings together and clarifies

    technical interpretations made by the Agencies (Environment Agency, Scottish

    Environment Protection Agency, Environment and Heritage Service Northern Ireland) over a number of years, as well as summarising the current methodologies.

    This document is based on information in the 2007 Regulations and associated guidance. It may change in the light of regulatory changes, future government guidance or experience in regulating this type of waste. The principal purpose of this document is to enable the

    agencies‟ officers to interpret and enforce the regulations. In the interests of transparency, it is available to others but it has no status other than as internal guidance to our staff.

All references to the Regulations in this document refer to The Producer Responsibility

    Obligations (Packaging Waste) Regulations 2007 (as amended).

    Environment Agency 1


    1. Agreed positions 3 1.1 Accreditation 3 1.2 Registrations 3 1.3 Activities 5 1.4 Long-term/durable packaging 5 1.5 Overseas issues 6 1.5 Medical/Healthcare packaging 8 1.6 Postal packaging 9 1.7 Cores, reels and spools 9 1.8 Freight (road, rail, ship and air) containers 9 1.10 Catering packaging 10 1.11 Labels 11 1.12 Miscellaneous 12 1.13 Specific packaging items obligated or not? 17 2. Acknowledged methodologies 21

    Environment Agency 2

1. Agreed positions

1.1 Accreditation

    ACC-GN01: Guidance notes for accreditation of reprocessors and exporters of UK

    packaging waste gives information on the packaging content of mixed waste,

    reprocessor efficiencies, agreed percentage packaging content for mixed waste paper,

    mixed steel scrap, EfW, clinical EfW, business plans etc.

Recyclates as raw materials

    Raw materials manufacturers who are also reprocessors, such as paper mills, will

    attract producer obligations on their total output of packaging materials including the

    recyclate content (i.e. recyclates used as raw materials count in the same way as

    virgin raw materials). For example, a reprocessor that blends virgin material with

    recyclate to make a packaging raw material will incur a manufacturer obligation (6%)

    on the total output. In such a case, the supplier of virgin raw material to the

    reprocessor will have no obligation on the materials so supplied, because the

    reprocessor will be picking up the manufacturer‟s obligation.

    Recyclate sold to converters as a packaging raw material by independent

    reprocessors in competition against virgin materials should be treated as a

    manufacturing output, with a 6% obligation.

1.2 Registrations

Group registrations

    Groups can register through the holding company, or each subsidiary that handles

    packaging can register individually. Even if the subsidiary handles less than 50

    tonnes they must be covered by a registration if the group is over the turnover and

    tonnage thresholds as a whole.

Supply and ownership issues

    Some examples for guidance on interpretation:

1. Converters handling packaging materials they do not own.

    A converter could be manufacturing packaging that is owned by his packer-filler

    customer. In such a case, the obligations for the conversion process would fall on that

    packer-filler as the converter is acting as an agent.

2. Rolled-up importer's obligations.

    These fall on the first company based in Great Britain which owns the materials or

    packaged products. An importing agent would not own the packaging if he merely

    acted as an 'order-taker'. He could be simply the sales office of the foreign-based


    A test on ownership is to ask to whom the money is paid for the imports. If the

    payment is made direct by the buyer to an overseas supplier, the obligated importer

    would be the GB buyer. If the payment is made to a sales office based in Great Britain,

    then that suggests that the sales office would have effectively taken ownership of the

    products between the overseas provider and their buyer, and that sales office would

    be the importer.

    Environment Agency 3

3. Contracted-out packer-filler activities packaging owned by the principal (i.e. the

    company contracting out the activity).

    The obligation for that activity falls on the owner of the packaging i.e. the principal. It is important to establish who owns the packaging at the point of pack/filling. If the contractor purchases the packaging materials, pack/fills, and then invoices the principle company for the materials, the CONTRACTOR is the owner of the packaging and thus picks up the obligation (as in 4. below).

    4. Contracted-out packer-filler activities packaging owned by the contractor.

    Again, the obligation for that activity falls on the owner of the packaging - in this case the contractor.

    5. Transit packaging owned by a third party.

    Some re-usable crate systems and pallets used by the packer-filler are hired over a time period or for a single journey from the system's owner (e.g. a leasing-finance company). In such cases, the system owner will pick up the pack/filler and seller obligation (85%) as a „service provider‟.

    6. What obligations arise when the owner who is also the end user of packaging gives it to its supplier for pack/filling and for supply back to itself?

    No pack/fill or sell obligation will arise. The pack/filler does not own the packaging and thus is not obligated. The owner and eventual end user cannot supply to itself, thus there is no seller obligation.


    Regulation 3 states that charities are exempt. Note that some charities also have trading operations which are NOT exempt, for example Oxfam shops.

    Registration of Subsidiaries and associated packaging handled

    Each compliance period a small number of situations have arisen with regards to the registration of holding companies and their associated subsidiaries. In some cases subsidiary names have not been included in the original registration, in others one or more subsidiaries data has not been included. We have set out below how we intend to deal with these situations from the 2009 registration round onwards

Scenario 1

    Holding company registers all packaging handled data, but fails to provide complete list of subsidiaries.

    Holding company can add additional subsidiary details, at a later date, to its registration.

Pay the additional subsidiary fee(s).

Scenario 2

Holding company fails to include a subsidiary and its data in the initial registration.

Holding company can add additional subsidiaries and data to its registration.

    Pay the additional subsidiary fee(s) and data resubmission fees.

    Environment Agency 4

Scenario 3

Group acquires/divests itself of a subsidiary following registration.

Follow the mid year change requirements set out in the regulations.

Scenario 4

    Business details change within the holding company and/or its subsidiaries e.g. addresses, telephone numbers, contact names etc.

Details updated with us.

    No fees payable

    1.3 Activities


    Where packaging is assembled from several components, the component manufacturers supplying to the pack/fillers will usually be regarded as the converters, NOT the pack/filler.


    Glass etching If etching is carried out as an integral part of the bottle formation, the etching process is the final conversion stage. Any frosting/etching undertaken as a subsequent activity to bottle formation is not the final conversion activity.

    Pre-forms - The person who blows the bottle to its final shape and size is considered to be the last converter in the conversion process and therefore will have the converter‟s obligation.

    Air filled plastic pillows the converter is the business blowing air into and heat sealing the pillows.

    Carrying out Converter and Packer/Filler Activities at the same time - Where converter and packer/filler activities take place at the same time for the same

    packaging, the producer only picks up the packer/filler obligation. In reality this situation rarely occurs; examples may include the packing of crisps where the bags are formed from a continuous roll of film at the same time as the crisps are added to the bags. Other examples may include the flow wrapping of baked goods and the sealing of products between two layers of thermo-formable films.

    Export and subsequent import of packaging

    Exports Packaging exported, pack-filled, then imported by the same producer the rolled up import obligation applies, unless the producer can demonstrate that the raw material manufacturer and conversion obligations have already been picked up in the UK.

    1.4 Long-term/durable packaging

    Packaging which is designed to stay with the product for its life will be regarded as long term storage, and will not be obligated, e.g. boxes for board games; first aid kit boxes; boxes for tools.

    Environment Agency 5

    1.5 Overseas issues

    Great Britain/Northern Ireland

    Great Britain (GB) consists of England, Scotland and Wales. The United Kingdom consists of GB plus Northern Ireland (NI). The Channel Islands and Isle of Man are outside the UK.

    Movements between GB and NI do not constitute exports and imports, and consequently transfers of packaging and packaging materials from Northern Ireland into Great Britain bring no " rolled up" obligation (even if originally imported from outside the UK). This is because you cannot "import" into Great Britain from another part of the UK. The company which originally imported the goods into Northern Ireland would pick up the rolled up obligations.

    Packaging and packaging materials sent to Northern Ireland are not exports for the purposes of these regulations. Subsequent exports from the UK of packaging that was shipped from Great Britain to Northern Ireland should be treated as third party exports.

    Transfers of packaging waste into Great Britain (which has originated in Northern Ireland) can be used to fulfil recovery and recycling obligations, as can packaging waste sent from Great Britain to Northern Ireland for reprocessing.

    Registration of Overseas Producers

    The Producer Responsibility Obligations (Packaging Waste) Regulations 2007 (the packaging regulations) apply to Great Britain. They do not apply to businesses situated outside GB.

    We have previously taken the view that an overseas company operating in GB should be registered with Companies House as an overseas company under the Companies Act 2006 before we would consider registering them under the packaging regulations. We have reviewed and changed our position on this matter.

    We will now accept, where an overseas company is operating in England and Wales and has a presence here, an application to register with us, irrespective of whether it has complied with the Companies Acts. In such situations we are taking the view that presence means an address. That might be a P.O. box, an office or even someone‟s domestic premises, if they are used for the purpose of the business.

Turnover of Overseas Companies

    In the case of a company, the packaging regulations require turnover to be determined by reference to audited accounts and for companies audited accounts are treated as being available when company accounts have been filed with Companies House. For overseas companies they will only have an obligation to submit accounts to Companies House once regulations requiring submission of accounts are made. Regulations have not yet been made. So, for overseas companies we can determine turnover by reference to the latest available accounts. Turnover should be assessed on the companies total turnover. There is no need to separate out turnover for the UK only. This position is consistent with the way we assess UK registered companies, where we do not discount any overseas activities.

    Environment Agency 6


    Our position for group registration is that the holding company and the relevant subsidiary company(ies) must be operating and present in GB. We are not changing that position. However, we are applying the same rules to groups as to other overseas companies so we don‟t require the holding company to have a registration

    with Companies House. If, for example, holding company X (incorporated in Germany) has a presence (an office) here and two of its subsidiary companies operate here and have a presence here (they may even by UK registered companies) X will be able to register as a group. However, if X does not have a presence here it can not make a group registration and the two subsidiaries will have to register separately.

    Handling of packaging in NI

    The regulations require a person to determine if they are a producer by assessing the amounts of packaging handled in the UK (GB+NI). Up to 2007, if a producer handled over 50 tonnes, they were required to register the amounts handled in GB and NI separately (i.e. a registration in each) with the relevant authorities, even if below 50 tonnes in either location.

    For 2009 and future registrations the Agencies will allow businesses that meet the registration threshold through their combined operations in GB and NI, but who handle less than 50 tonnes in one or both locations, to make one registration with the Agency where their business is based. The single registration will cover packaging handled in GB and NI. A business that operates in GB and NI and handles 50 tonnes or more packaging in each location will still be required to make two separate registrations for GB and NI.

    Foreign holding companies

    The Regulations rely on the Companies Act 2006 to determine who is a holding company and who is a subsidiary. The regulations apply to activities carried out and operators present in Great Britain. Therefore, even if there is an overseas holding company with two subsidiaries in Great Britain, group registration cannot apply because the regulations do not apply to the overseas holding company. Therefore a foreign holding company is not recognised and cannot register.

    will be reported in 2009 registrations as per the interpretation set out above.

    Airlines food packaging obligated or not?

Item Obligated Comments

    Disposable tray Yes Protects and presents food

    Durable tray No No packaging function

    Knives and forks No No packaging function

    End users where supply takes place in UK (usually on domestic flights), passengers are the end users. So for domestic flights, airlines are the sellers, regardless of whether it is a direct sale or included in ticket price.

    For overseas flights, where waste is not returned to the UK, food packaging is destined for export and will carry no obligations.

    Primary packaging around goods sold or consumed on board aircraft destined for the UK from overseas will carry no obligations.

Duty free shops

    Environment Agency 7

    The Agencies are aware of the abolition of duty free privileges in the EC. Duty free rules still apply for other destinations.

    HM Customs exercises strict control on duty free goods. Any goods sold in duty free shops (in airports, on ships and on international journeys), and on which no duty has been paid must be taken out of the UK. Consequently, the Agencies consider that

    duty free goods are exported by the seller, who therefore has no obligation for them under the Regulations.

    Primary packaging around goods sold or consumed on board ships, trains and aircraft destined for GB will carry no obligations.

    1.5 Medical/Healthcare packaging

Persons providing treatment and/or healthcare directly to patients at, or on behalf of

    medical, nursing, dental, veterinary or similar establishments shall be regarded as the end user of any packaging materials associated with the delivery of that healthcare. For practical reasons, they will be regarded as the end user even in respect of healthcare products given to and unwrapped by patients, including healthcare products taken home by patients upon their discharge. Thus, the companies supplying these establishments will be performing (at least) the Seller activity. NHS Trusts principally source healthcare goods from an intermediary company (was NHS Logistics, now DHL). As such, the intermediary company will have the selling obligation where the NHS is the end user. If the NHS Trust supplies goods on (e.g. through their pharmacy or catering) they, and not the intermediary company, will have the selling obligation.

    Ancillary retailing activities at healthcare establishments (e.g. pharmacies, restaurants, newsagents, etc.) where goods are supplied “over the counter” to customers or

    patients shall be regarded as sellers of the associated packaging. Such persons may also carry out any other relevant packaging activities, such as pack/filling.

    Organisations or undertakings not trading for profit, such as NHS Health Trusts, shall be regarded as “conducting an occupation or profession”, and will therefore fall within the definition of a “person acting in the normal course of business”. Such organisations may be obligated under these Regulations if they exceed the threshold tests and perform a relevant activity.

    Table of specific medical packaging and obligations

    Item Obligated Comments

    Inhaler - Plastic holder No Product

    Inhaler - Cartridge Yes Packaging

    Inhaler - Whole unit Yes All packaging

    disposable (for one trip)

    e.g. asthma or nasal

    Urine bags No Not part of sales unit. Urine is neither

    bought nor sold in Great Britain.

    Blood bags No Not part of sales unit. Blood is neither

    bought nor sold in Great Britain.

    Dosage delivery caps Yes But only if integral part of container (e.g.

    forms part of closure)

    Spoons/leaflets with No No packaging functions


Sterile Medical Packaging Yes Protection function, therefore packaging.

    The fact that it‟s sterile does not remove

    Environment Agency 8

    the potential for being obligated.

    Saline bags Yes Sales unit containing product

    1.6 Postal packaging

    If the contents are acquired as part of a contract (e.g. mail order goods, catalogues which have been paid for, free catalogues that have been requested, including on approval) they are goods and the postal package is obligated.

    However, if the contents of the postal package are not part of a sales contract (e.g. unsolicited mail, correspondence, statements and invoices) they are not goods and the postal package is not obligated.

    1.7 Cores, reels and spools

    Cores used during manufacture are often used to handle, deliver and protect the goods as they enter a particular manufacturing process and as such fall under the definition of packaging as given. The interpretation of whether these cores are obligated packaging depends on the nature of their supply.

    The only cores which are not obligated packaging are those which are not supplied to the next stage in the packaging chain or the end user. These will often be cores which are used for internal transfer between manufacturing processes on the factory floor only, and are not subsequently used to supply onto the next packaging activity. Cores which are supplied with goods going on to the next stage in the packaging chain, including the end-user, are obligated packaging.

Cores which are used and passed back and forward between activities (and are not for

    internal transfer only) pick up an obligation on their first trip after which they can be discounted.

    1.8 Freight (road, rail, ship and air) containers

    Road etc containers are not defined in the Packaging Directive or Regulations. They are, however, exempt from being tertiary (transport) packaging.

    When the Council of Ministers and Commission were discussing the draft Directive, they decided that the concept of "containers" should be taken in the general sense used by the International Organisation for Standardisation (ISO), in particular its Technical Committee TC 104. This is stated in a minute of the Council. TC104 deals with the international standards for freight containers, so it is clear that the Council

    and Commission considered that it was containers of this type which should be exempt from being tertiary packaging.

    There are many types of freight container made to different international standards, but their generic characteristics are (as set out in ISO 830) that they are: a. articles of transport equipment;

    b. of a permanent character and accordingly strong enough to be suitable for repeated use;

    c. specially designed to facilitate the carriage of goods by one or more modes of transport, without intermediate reloading;

    d. fitted with devices permitting ready handling, particularly for transfer between modes of transport;

    e. designed so as to be easy to fill and empty;

    f. of an internal volume of 1 cubic metre or more;

    g. not vehicles.

    Environment Agency 9

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