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American Packaging Laws continue to grow - Chile and Maine (USA)

American Packaging Laws continue to grow - Chile and Maine (USA)

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by Sam Smith, July 2019
Sam is an EC4P Compliance Consultant helping companies identify their legal exposure to WEEE, Batteries and Packaging legislation and providing cost-effective and legally-robust recommendations for compliance.

Maine (USA)

In March 2019, as Washington State announced plans to implement an EPR Packaging Law, EC4P predicted that other states would soon follow and look to implement similar EPR Packaging Laws. This prediction appears to be correct as in addition to the recent ban on single use plastic bags in New York and Hawaii, and the news earlier this month that California passed Single-use Packaging and Product Bills; the state of Maine has now announced plans to present a draft Extended Producer Responsibility (EPR) scheme for packaging waste to the Committee on Environment and Natural Resources before 16th December 2019, with a potential implementation date in 2020.    

What will be included in Maine’s EPR Packaging scheme?
Law LD 1431 mandates that Maine’s proposed EPR scheme for packaging waste must include:
  • a comprehensive scope that includes all packaging types;
  • exemptions for small producer
  • establishment of non-profit compliance organisations ('stewardship organisations') to provide a collective compliance option for producers;
  • producers to finance at least 80% of the cost associated with recycling packaging and to reimburse municipalities for managing non-recyclable packaging items;
  • compliance organisations to establish a fee structure that penalises producers of non-recyclable packaging items and encourages recyclability of higher value material fractions;

Interestingly, the law stipulates that a method by which producers can claim for costs against non-compliant producers and a method that will require online retailers to contribute to packaging waste management - e.g. through payment to a waste fund, are also included. 

These requirements are generally in line with those of the EU’s Packaging and Packaging Waste Directive and give hope to improving the shortcomings in Maine's existing household recycling programs, where the state has yet to the meet the 50% target set in 1989.

Chile

Unlike Maine, which looks to be acting quickly to establish an EPR scheme for packaging, Chile’s development of its EPR packaging laws has been somewhat sluggish. Resolution 1.492/2017 was published in December 2017 and tasked the government to formulate a Supreme Decree to detail collection and recovery targets for packaging waste. The initial deadline for this Supreme Decree (4-Jul-18) was not met and meaningful developments in Chile’s EPR packaging laws stalled. 

However, on the 10th June 2019 a pre-draft of the long awaited Supreme Decree was released for a 30-day public comment and provides a summary of the expected content .

Are you obligated?
The pre-draft defines a ‘Producer’ as “any person who places packaging or packaged goods for the first time on the national market, that places on the market packaging or packaged merchandise under their own brand when acquired from a third party who is not the first distributor, who imports packaged products or packages products for professional use”. 
 
Common amongst EPR Laws in non-EU countries, as this definition does not explicitly account for distance sales (e.g. via the internet) from foreign companies with no legal presence in Chile, confusion can easily arise. This producer definition suggests that foreign companies distance selling professional use packaged products are not obligated but foreign companies distance selling packaged products to private consumers through the Chilean market may be obligated. If the full Supreme Decree passes into law (24 months following publication) producers will no doubt question how this definition is implemented. 

Requirements
Obligated producers will be required to comply through individual or collective ‘management systems’. Chile's management systems are heavily regulated and will be required to establish curbside collection activities, meet geographic requirements and charge modulated fees.

Exemptions
Full exemptions will be provided to producers who meet the ‘micro enterprise’ criteria of having an annual revenue below 2,400 Chilean Accounting Units (about EUR 84,000). Producers who put-on-the-market less than 300 kg annually will still have a reporting obligation but are exempted from the take-back requirements. 

Full and further details, such as a financial guarantee for obligated producers, are to be provided in the upcoming draft.

Future Commitment
The Supreme Decree will also support Chile’s commitment to the ‘Chilean Plastics Pact’ which was signed on the 15th April 2019 and aligns Chile with the other signatories of the Ellen MacArthur Foundation’s ‘New Plastics Global Economy Commitment’ which untimely aims to commit the signatories to:
  • eliminate problematic or unnecessary plastic packaging by 2025;
  • move from single-use towards reuse models where relevant by 2025;
  • make 100% of plastic packaging reusable, recyclable or compostable by 2025; and set an ambitious 2025 recycled content target across all plastic packaging used

How EC4P can help?

We offer a global update service which monitors draft laws and notifies you when these laws come into force. As part of our compliance services, we can assess whether you are required to take action under newly implemented laws. We can also identify the best solutions to ensure compliance to the regulations and manage these on your behalf. For more information about our services please contact us