A ban in England
The UK Government announced on 14 January 2023 that it will be introducing a ban on the supply of a range on single-use plastics in England. This ban is to be introduced from October 2023. It is proposed that the ban will include:
- plastic cutlery (such as forks, knives, spoons and chopsticks);
- plastic plates;
- plastic trays;
- plastic bowls;
- expanded and extruded polystyrene food containers; and
- expanded and extruded polystyrene beverage containers, including cups.
The ban on the supply of single-use plastic plates, trays and bowls will not apply to those that are used as packaging, in shelf-ready pre-packaged food items. Businesses will still be able to purchase empty plates, bowls and trays where they will use only as packaging for food, however, individuals will not be able to purchase these items.
It is intended that the ban will cover items made from plastic that is bio-based, biodegradable or compostable.
Under the draft Regulations, it will be an offence to supply, or offer to supply any of the above-mentioned items to customers in England. It is proposed that a business found to be in breach of the Regulations could be subject to a fine. There are no proposed exemptions to the ban.
It is worth noting that the supply of plastic straws, cotton buds and stirrers is already banned under The Environmental Protection (Plastic Straws, Cotton Buds and Stirrers) (England) Regulations 2020.
Scotland
Following on from the commitments made at COP26, on 1 June 2022 the Scottish Government brought into force Regulations to ban some single use plastic items in Scotland. The Regulations make it unlawful to manufacture and supply any of the single use items below in the course of business, both online and in-store:
- plastic cutlery (such as forks, knives, spoons and chopsticks);
- plastic plates;
- plastic beverage stirrers;
- expanded polystyrene beverage cups, including their covers and lids;
- expanded polystyrene beverage containers;
- plastic straws (supply only); and
- plastic balloon sticks (supply only)
The Regulations apply equally to plastic that is biodegradable, recyclable and compostable. Plastics that contain recycled material are also captured, and the Regulations apply to items supplied for free and those that are charged for.
It is an offence for businesses in Scotland to supply these items to other businesses and to individuals, regardless of where those businesses or individuals are located. Businesses based outside of Scotland will commit an offence if they supply such items to customers in Scotland.
A person or a business found in breach of this legislation may face a fine of up to £5,000.
Exemptions
The Regulations do not make it unlawful to manufacture plastic straws; they only make the supply unlawful. However, the Regulations provide for some exemptions to the supply of single use plastic straws, such as where plastic straws are used as a medical device, for a medical purpose, or used in the course of a support service which provides personal care or support. Plastic straws will still be available for purchase at pharmacies and certain other establishments such as care homes, schools, prisons and childcare centres will still be allowed to supply them.
The Regulations also allow that hospitality venues may supply single use plastic straws for immediate consumption of food or drink, as long as they are not kept in a place visible to customers and the venue does not offer or provide them to customers, unless the customer specifically requests them.
Supplies from the rest of the UK
The UK Internal Market Act 2020, introduced by Westminster, stipulates the 'mutual recognition principle' whereby any goods produced or imported via another part of the UK must be freely traded in any other part of the UK. Therefore, any single use plastic items produced or manufactured in Scotland fall under the new Regulations, but any single use plastic items produced or first imported to elsewhere in the UK would have been permitted on the Scottish market and are subject to their own jurisdiction's legislation.
However, the UK government has since brought into force Regulations that exclude Scotland's single-use plastic ban from the UK Internal Market Act, allowing the ban to be fully effective. It is now unlawful to make and/or supply commercially the above mentioned single use plastics, regardless of whether they are produced or first imported into another part of the UK.
A Welsh ban
Similar to Scotland and England, the Welsh Government has introduced legislation to ban single use plastics including plastic cutlery, plates and cups, which is likely to come into force in autumn 2023. It also seeks to ban completely the use of single-use plastic carrier bags, but there is likely an issue with the UK Internal Market Act, meaning that if a specific exclusion is not granted, it will still be possible for businesses outside Wales to supply plastic bags to businesses in Wales, significantly undermining the new regime. It is thought that a ban on plastic bags could therefore take longer to achieve. There will be civil and criminal penalties for breaching the regime.
The Northern Ireland Assembly consulted on a ban in 2021, but has not yet introduced legislation.
Consideration for businesses
As part of Environmental Social and Governance (ESG) strategies, businesses will no doubt already be considering limiting single-use plastics, moving to more sustainable alternatives. Those in retail and hospitality will need to familiarise themselves with the new regulatory regime which may involve changes to supply chains.
If you have any questions about how these new regulations may affect your business please get in touch with Caroline Colliston or your usual DWF contact.
Authors: Caroline Colliston, Colleen Dooner and Sheryl Dempster.
