Manufacturers and brand owners must take note of new waste management regulations

On 5 May 2021 the Regulations Regarding Extended Producer Responsibility (EPR Regs) came into force under the Waste Act. On the same day, the second round of amendments to the EPR Regs were finally published after extensive consultation with the affected sectors. Garyn Rapson, Paula-Ann Novotny, Nonhlanhla Payne and Amaarah Mayet of Webber Wentzel breakdown the EPR regulations.

The significance of the EPR Regs cannot be understated. These are gamechanging waste management rules which will undoubtedly have a positive impact for the environment, although they will weigh heavily on those impacted.

TOP TIPS FOR THE EPR REGULATIONS

• They apply to existing and new producers, brand owners and importers of a number of identified products, including:

• electrical and electronic equipment; certain batteries;

• lighting equipment; and

• paper, packaging and some single use products (paper, plastic, glass and metal);

• They apply to brand owners who transport, or sell their products in primary, secondary or tertiary packaging. Literally anyone who sells anything in SA that is packaged;

• They apply retrospectively to any products placed on the market before 5 May 2021;

• They apply to SA companies, international companies who placed products on our market through licensed agents, importers of branded goods and, if all else fails, retailers;

• Registration is required by all of the above parties by 6 November 2021 (or within 3 months for any new producers or importers);

• All of the above parties must, by 6 November 2021, either:

• establish and implement their own EPR scheme;

• join another EPR scheme; or

• appoint a producer responsibility organisation to establish and implement an EPR scheme;

• The entire value chain of the waste produced by the identified products must be considered in the EPR scheme (collection, storage, transport, reuse, recycling, treatment and disposal);

• EPR fees must be paid by the producers to fund the implementation of the EPR schemes, including the full waste lifecycle of the waste produced by the identified products;

• There are onerous auditing, reporting, transformation and other obligations that the producers or PROs must adhere to and achieve through the EPR schemes; and

• Strict mandatory take back, production design, reuse, collection, recycling and/or recovery targets are set to be achieved over a period of 5 years from the date of implementation of the EPR schemes, for the waste produced by the identified products. Careful analysis of these targets is required to understand the full extent of the impact of the EPR Regs on one’s business.

EFFECTIVENESS OF THE EPR REGS IN THE SHORT TERM

We have some reservations as to how effective the EPR Regs will be in the short term. Despite our reservations, the rules of the waste management game have changed and the impact will be felt by many. For some, however, these EPR Regs offer immense opportunity. As the saying goes, one person’s waste is another person’s treasure.

In the final amendments to the EPR Regs that came out on 5 May 2021, the risk of possible double taxation issues for manufacturers and importers of plastic carrier bags and plastic flat bags has been addressed through expressly excluding plastic carrier bags and plastic flat bags from the ambit of the EPR Regs. This is a welcomed legal development. Manufacturers and importers of these products must continue to comply with the Plastic Carrier Bags and Plastic Flat Bags Regulations, 2003 published under the Environment Conservation Act, 1989, as recently amended.

‘The significance of the EPR Regs cannot be understated. These are game-changing waste management rules which will undoubtedly have a positive impact for the environment, although they will weigh heavily on those impacted’

Why has the EPR scope been extended?

Government’s rationale for extending the EPR scope is predominantly informed by the historic approach which has been at play in the market until now, under voluntary industry-driven schemes. The Packaging Council of South Africa (PACSA) (now Packaging SA) and The Glass Recycling Company (TGRC) have been operating as voluntary industry bodies which promote product collection and recycling through their members, with membership comprising principally of converters and secondarily of associates (the latter being the major raw material suppliers, material organisations, brand owners, retailers and other organisations and associations with interests in the industries). Manufacturers and converters in these sectors have thus supported (and pushed for) the government’s extension of the EPR scope to their factions, to formalise the current practice of selfregulation in South Africa’s industries. Government’s reigning in of a wider scope of manufacturers and importers of products also seems to align with its idea of a circular economy, i.e. to allocate responsibility for the impact their products have on the environment, from manufacture to the day they are discarded.

Did you know?

This is the first comprehensive set of regulations seeking to regulate EPR measures in South Africa. The new EPR regime applies to producers of paper, packaging and some single-use products; electrical and electronic equipment; and lighting equipment, with designated ‘identified products’ within each sector.

Webber Wentzel www.webberwentzel.com