EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations revoke and replace the Packaging (Essential Requirements) Regulations 2003 (“the 2003 Regulations”). The 2003 Regulations implemented Articles 9 and 11 of Directive 94/62/EC of the European Parliament and the Council on packaging and packaging waste (OJ No L365, 31.12.94, p 10) which relate to the essential requirements to be satisfied by packaging. They also implemented two Commission Decisions providing for derogations in respect of plastic crates and pallets and glass packaging. These are Commission Decision 1999/177/EC establishing the conditions for a derogation for plastic crates and plastic pallets in relation to the heavy metal concentration levels established in Directive 94/62/EC on packaging and packaging waste (OJ No L056, 04.03.1999, p 47) and Commission Decision 2001/171/EC establishing the conditions for a derogation for glass packaging in relation to the heavy metal concentration levels established in Directive 94/62/EC on packaging and packaging waste (OJ No L062, 02.03.2001, p 20).
The 2003 Regulations were amended to reflect amendments to Directive 94/62/EC by S.I. 2004/1188, S.I. 2006/1492, S.I. 2009/1504, among other legislation. Directive 94/62/EC was last amended by Directive (EU) 2015/720 as regards reducing the consumption of lightweight plastic carrier bags (OJ No L115, 6.5.2015, p 11). These Regulations consolidate the amendment Regulations and introduce a definition of “plastic” and “plastic carrier bags”. Part 2 provides for the application of the Regulations. They apply to all packaging (as defined in regulation 3(2)).
Part 3 sets out the general requirements of the Regulations. Regulation 4 imposes a duty on a responsible person (as defined in regulation 2(2)) who places packaging on the market to ensure that it satisfies the relevant essential requirements. The essential requirements (Annex II of Directive 94/62/EC) are set out in Schedule 1. Regulation 5 imposes a duty on a responsible person who places the product on the market to ensure that the sum of the concentration levels of lead, cadmium, mercury and hexavalent chromium of that packaging or of its packaging components does not exceed 100 ppm. Regulation 5(1) does not apply to packaging which is made entirely of lead crystal glass (regulation (5(2)). Regulation 5(3) introduces derogations from regulation 5(1) in respect of plastic crates and pallets and glass packaging provided the respective conditions set out in Schedules 2 and 3 are met.
Regulation 6(1) provides for the responsible person to keep technical documentation on compliance with the essential requirements and the heavy metals concentration limits in respect of packaging and to make this available at the request of the enforcement authority.
Regulation 6(2) makes provision for the manufacturer or the manufacturer’s authorised representative or, if neither is established in the Union, the responsible person who places the product on the market, to comply with the provisions relating to information set out in Schedules 2 and 3 to be submitted in certain circumstances and on request to the enforcement authorities.
Part 4 relates to enforcement of the Regulations. The enforcement authorities are the weights and measures authorities in Great Britain and the Department of Enterprise, Trade and Investment in Northern Ireland and have the powers set out in Schedule 4 to these Regulations and Schedule 5 to the Consumer Rights Act 2015 (c.15). In Scotland, proceedings are brought by the Procurator-Fiscal or Lord Advocate. Regulation 8 provides for offences. Regulation 9 provides for penalties for breaches of the Regulations. There are also provisions relating to the defence of due diligence (regulation 10) as well as liability of persons other than the principal offender (regulation 11).
Regulation 12 requires the Secretary of State to review the operation and effect of these Regulations and publish a report within five years after they come into force and within every five years after that. Following a review it will fall to the Secretary of State to consider whether the Regulations should remain as they are, or be revoked or be amended. A further instrument would be needed to revoke the Regulations or to amend them.
Regulations 13, 14 and 15 provide for consequential amendments and Schedule 6 for revocations.
A full impact assessment of the effect that these Regulations will have on the costs of business, the voluntary sector and the public sector has not been produced as there are no expected changes in costs or savings to business as a consequence of this consolidation. An updated transposition note has been prepared and is available at www.gov.uk/bis and is annexed to the Explanatory Memorandum which is available alongside the Regulations at www.legislation.gov.uk. Copies of these documents have been placed in the libraries of both Houses of Parliament.