Is a Packaging Makeover Ahead?

Legal Briefs

The basic principles behind extended producer responsibility (EPR) have long been known. Governments, unwilling or unable to change consumer behavior, place the burden for mitigating post-consumer impacts of wastes on manufacturers.

Two recent initiatives—a proposed tax measure in San Francisco and a voluntary industry commitment on biodegradable polymers in the European Union (EU—are thus of interest to the converting industry, not only because of the proposals themselves, but because they reflect different policy approaches to addressing packaging wastes.

On Jan. 26, 2004, the San Francisco Commission on the Environment voted unanimously to propose to the Mayor and City Board of Supervisors Resolution No. 007-04-COE. It would impose a 17-cent/bag surcharge on all paper and plastic grocery bags given to shoppers at grocery stores. Initially, the measure would apply to supermarkets with gross sales in excess of $2 million but would later expand to smaller markets, such as drug stores, department stores, hardware stores, dry cleaners, newspapers, and other bag distributors.

To justify the proposed tax, the resolution references the number of trees felled to make paper bags and oil barrels required to produce plastic bags; plastic litter in city streets, sewers, and beaches; wildlife entangled or killed by plastic material; and concerns that plastic bags are difficult to recycle and compost, and they disrupt recycling machines. Half of the proceeds from the proposed tax would be turned over to the city’s Dept. of the Environment for "related purposes and programs." The remaining half would be retained by the supermarkets to fund city-approved programs such as providing discounted durable, reusable checkout bags; in-store collection of bags and other packaging for recycling; providing free compostable bags in produce and bulk aisles; discounting compostable bags and food service ware sold on store shelves; and conducting outreach on waste prevention and recycling programs.1

In response, the Mayor and Board of Supervisors directed the Dept. of Environment to conduct a study of the impact shopping bags have on the city’s economy and to evaluate the impact of a bag fee on low-income individuals and large families.

The report is due near the end of April, and the results could change the scope of the proposal.

From a procedural standpoint, such an assessment arguably should have been conducted in the first place, other environmental attributes (such as source reduction) considered, and other measures to promote bag collection, recycling, or other programs considered.

In contrast, the EU recently announced its acceptance of a voluntary ten-year commitment by four manufacturers of biodegradable and compostable polymers to comply with the standards of EN 13432, Requirements for Packaging Recoverable Through Composting and Biodegradation, when manufacturing and marketing biodegradable and compostable materials. The signatories2 are committing to provide polymers that will biodegrade in 180 days at a rate greater than 90% of that of cellulose and achieve greater than 90% disintegration within three months.

They have agreed to an extensive label monitoring and certification scheme to be conducted by DIN CERTCO and other EU certification bodies.

Once granted, the certified products could be deemed compliant with US and Japanese compostability certification criteria; these certification organizations increasingly are cooperating on harmonizing their certification schemes. The voluntary agreement does not set specific production or conversion goals; it is intended as a "starting point for the wider use of the EN13432 standard."

The Agreement anticipates and accepts participation by late signatories, particularly those with a global market presence, provided they agree to the terms and conditions of the agreement.

Target customers for the certified biodegradable polymers include the packaging sector (food containers, wraps, nets, foams) and manufacturers of plastic grocery bags and those plastic bags used to collect and compost food wastes.

The Federal Trade Commission’s Guides for the Use of Environmental Marketing Claims still set forth the Commission’s position on when unqualified environmental claims—including claims about recyclability, biodegradability, and compostability—may be made for products or packaging, and recommended qualifiers in certain instances.

1 San Francisco’s composting programs currently only accept paper products and plastic products certified by the Biodegradable Products Institute (BPI) and labeled BPI compostable.
2 The signatories to the voluntary agreement include BASF (Germany), Cargill Dow (US), Novamont (Italy), and Rodenburg Biopolymers (Netherlands).

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; This email address is being protected from spambots. You need JavaScript enabled to view it.;

To read more of Sheila A. Millar’s Legal Briefs columns, visit our Legal Briefs Archives.

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