LGA Response to Defra’s consultation on the draft Producer Responsibility Obligations (Packaging and packaging waste) Regulations [2024]

• The Local Government Association (LGA) is the national voice of local government. We are a politically-led, cross party membership organisation, representing councils from England and Wales.
• Our role is to support, promote and improve local government, and raise national awareness of the work of councils. Our ultimate ambition is to support councils to deliver local solutions to national problems. 
• This response is not confidential.

The LGA welcomes the introduction of the reformed extended producer responsibility scheme for packaging and the opportunity to comment on the draft regulations. Defra must move onto implementation without further delay. 

The regulations should be driven by the outcomes that Defra is seeking to achieve through the reform of the producer responsibility scheme for packaging:

• To prevent waste, and motivate producers to reduce the amount of packaging overall placed on the market.
• To transfer the cost of dealing with used packaging away from council tax payers and back to producers (the polluter pays principle)

It is concerning that the regulations add a third aim of managing council performance by giving the scheme administrator the power to issue councils with improvement plans and withhold payments based on performance. The concept of an “efficient and effective” household waste and recycling service is poorly defined, yet this underpins significant powers for the scheme administrator. For many years, local government has been finding ways of making their services as efficient as possible, responding to local circumstances. Only councils can fully appreciate the context in each place, and national model will unlikely capture the granularity of service provision and costs developed over time to best address needs in each place.

In the section on packaging definitions and the scope of EPR, there is potential for confusion over drinks containers. There should not be loopholes in the regulations that allow producers to put drinks containers on to the market without paying either through EPR or the deposit return scheme. It would be simpler if the regulations made it clear that all drinks containers are subject to EPR regulations until such point as the deposit return scheme is introduced, when materials covered by the deposit return scheme would become exempt from EPR. 

The requirements on producers must be robust and transparent. There are areas of the regulations that could be strengthened to achieve this. An example of this is allowing producers to self-assess the recyclability of their packaging. 

Although the LGA is greatly concerned about the scope being given to the Scheme Administrator, we welcome ongoing discussions with Defra about the governance of the Scheme Administrator. While decisions on governance are outside the scope of this consultation, we hope that Defra will continue to work closely with the LGA and ensure that local government across the UK is properly represented in the overseeing body for the Scheme Administrator. 

There is a lot of detail to review in the draft regulations which run to over 130 pages. We urge Defra to keep a dialogue with local government open beyond the consultation period. The EPR scheme will not operate in a vacuum and new issues may arise once we have further detail on the implementation of the deposit return scheme for drinks containers and simpler recycling for households (formerly known as consistency of recycling). Defra should consider additional review points before full implementation of the regulations. 

The LGA does not have a view on all the chapters of the regulations. Our answers focus on the most relevant questions for local government. 

Q7. Do the draft Regulations ensure all types of packaging, which is not exempt packaging, are subject to recycling obligations?

No, and the specific concerns are:

Exemption for packaging discarded with food waste: Under “Packaging and packaging categories”, the interpretation of household packaging says that packaging discarded with food waste in a separate food waste collection does not count as household packaging. 

This could be difficult to interpret as and could have unintended consequences, such as making compostable packaging more attractive to producers as it would not be covered by EPR. It could also mean that this type of packaging is exempt from the labelling requirements.

Reference: paragraph 8 1) a)  “any packaging waste which is discarded together with food waste in a receptacle for food waste where the food waste in that receptacle is collected separately from other household waste by the relevant authority collecting that waste”.

Exemption for packaging covered by a deposit return scheme: The regulations should only provide this exemption for packaging going into an effective/large scale DRS scheme, not just an operational or relevant DRS scheme.

The unintended consequence is that the regulations as worded would create an incentive to establish small scale deposit return schemes to avoid EPR payments. 

Reference: paragraph 13 (1e): packaging which is a deposit item for the purposes of a relevant deposit scheme.

Q8. Are producers recycling obligations clear? Answered with Q14. Are the requirements for the provision of recycling information and packaging labelling clear? 

No, and the specific concerns are:

Recycling information obligations: general: The wording on the requirements for producers to assess the recyclability of their packaging is unclear. Allowing self-assessment may lead to in abuse of the system. Ideally, there should be a requirement to consult local authorities and the recycling industry to ensure that labels are accurate and that items labelled as recycled are suitable for the household recycling stream. This could be done through the regulations or as a separate process.

Reference: recycling obligations general, paragraph 22 (1) 

Recycling information: interpretation: the regulations define recycling information as 

(a) a statement as to whether the packaging is or is not recyclable,

(b) the symbol prescribed in regulation 23(1)(b) or (2)(b) as appropriate, and

(c) any recycling instructions included for the packaging;

“recycling instructions” means instructions as to how packaging may be collected for recycling, other than collection by a relevant authority

Reference: paragraph 20

This may need further consideration if the aim is to simplify recycling instructions on packaging and avoid confusing or misleading information to the public. The wording “other than collection by a relevant authority” could be exploited as a loophole by producers. 

It could also lead to some types of packaging being labelled as not recyclable if they are not accepted in the household waste stream, but can be recycled through other routes such as a household waste and recycling centre.  

Q17. Are the functions of the Scheme Administrator as outlined in the draft Regulations clear?

No, clarity is needed on how the Scheme Administrator will develop some of the evidence that underpins the cost calculations. 

List of commonly binned items: the Scheme Administrator is required to develop a list of commonly binned items as part of the process of calculating council disposals costs. We are seeking reassurance that local government will be involved in the development of the list, and for this to be explicit in the regulations. 

Reference: paragraph 70 

Procedure for assessments: the regulations refer to situations when a local authority owes money to the scheme administrator (for example in paragraph 75(6). It is not clear why this is necessary, as councils will not make payments to the Scheme Administrator. The Scheme Administrator should carry the cost of inaccurate calculations rather than passing them through to councils. 

Q22. Do the draft Regulations make it clear what the Scheme Administrator is required to do and consider in assessing local authority efficient net disposal costs and service effectiveness? 

No, clarity is needed on the following area:

The draft regulations allow the Scheme Administrator to assess efficient net disposal costs based on “local, national or international examples of good practice” It is unclear why the scheme administrator would need such a wide scope of good practice, and this would be resource intensive for the scheme administrator. 

The assessment of cost should be based on data and discussion with the local authority. Where comparisons are necessary this should be limited to comparisons within an agreed range. 

Reference: paragraph 74 (5).

Q23. Do the draft Regulations make appropriate provision for how the Scheme Administrator will incentivise the delivery of efficient and effective packaging waste management services by local authorities?

No, as for many years, local government has been finding ways of making their services as efficient as possible, responding to local circumstances. Only councils can fully appreciate the context in each place, and national model will unlikely capture the granularity of service provision and costs developed over time to best address needs in each place.

Clarity is needed on the following areas:

Efficiency: this is defined in the draft regulations as ”as low as reasonably possible, taking into account 

(a) the waste management service provided by the authority, and 

(b) any other factors specific to—

(i) that authority, or 

(ii) to the area in relation to which it exercises its waste management functions,

which in the opinion of the scheme administrator are likely to affect its disposal costs

(Reference paragraph 72 (5)

This is a narrow definition of efficiency based on lowest cost possible and it does not take in account other ambitions, such as reducing carbon emissions from waste management activity. There is no reference to the quality of service to residents or the feasibility or achieving the lowest cost possible. For example if reducing cost would only be possible with significant upfront investment in new infrastructure. 

Effectiveness: The regulations refer to effectiveness as grounds for the scheme administrator to reduce payments to councils. However, there is no definition of effectiveness in the regulations. This allows the scheme administrator to act as the judge of local authority effectiveness without any clarity on how effectiveness is measured.  

Incentives: the draft regulations do not include any provision for incentivising local authorities. As the regulations stand, the scheme administrator can only penalise councils. There is no provision for money from producer fees to be used as an incentive or to help councils make investments in service improvement. 

Appropriateness: it is troubling that the Scheme Administrator has the power to act as an improvement body for councils. Defra should look again at the case for sector lead improvement, rather than placing this task with the scheme administrator. Canada’s extended producer responsibility scheme has a more collaborative approach with local government, for example. 

Resident behaviour: increasing recycling relies on high levels of participation from residents. Councils can influence residents through the design of systems and communication, but participation rates can be low even where there are systems in place. Clarity is needed over the expectations of councils, and Defra should give though to how the implementation of EPR and other reforms could help to create long term shifts in behaviour. 

Q25. Do the draft Regulations make appropriate provision for how the Scheme Administrator will distribute disposal cost payments to local authorities? 

No, clarity is needed on the following areas and the full costs incurred by councils in fulfilling their waste and recycling duties related to packaging must be met through the EPR scheme.

The scenario of a shortfall between producer payments and local authority costs is recognised in the draft regulations. In the case that payments are less than costs, the scheme administrator will decide how to split payments between its own costs and council costs. The scheme administer will decide how the money it has allocated to councils will be distributed. From the point of view of providing financial stability to councils, this is not satisfactory particularly as the scheme administrator has other powers to withhold money from councils on performance ground. 

The risk of a shortfall of producer funding has been passed to councils, rather than being managed proactively by the scheme administrator. Defra should look at this again to ensure that EPR does not have a destabilising effect on council finances. 

Reference: Paragraph 80 (3) and (3b)