Legal experts at Mills & Reeve have warned that food producer businesses may be inadvertently impacted by EPR rules if their brand is placed on packaging – even if a grocer or retail business is the dominant consumer-facing brand.
The way UK organisations responsible for packaging must carry out their recycling responsibilities has changed under Extended Producer Responsibility Rules (EPR). Producers of packaging may have new reporting obligations and be required to pay fees on the data provided.
The policy framework has been designed to make producers accountable for the entire lifecycle of their household packaging materials. This means that brand owners, packers and fillers, importers and others may be charged a levy on their packaging by reference to the type of material used.
However, lawyers at Mills & Reeve have warned that the drafting of the legislation may expose food and drink producers supplying products to large supermarkets to an unexpected burden.
Rob Biddlecombe, environmental partner at Mills & Reeve, said: “Thousands of food and drink businesses may be impacted and not realise yet. Where there is more than one brand on filled packaging, responsibility sits with the first "brand owner" who supplies the goods. Many suppliers have assumed if they supply to a large supermarket, for example who also has their brand on the product, that the supermarket would carry the responsibility. However, the drafting states that it is the first supplier who has their brand on the product that assumes responsibility.”
Richard Dawson-Gerrard, commercial disputes partner at Mills & Reeve, added: “This doesn’t seem to be in the spirit of the rules and will catch out a lot of food and drink producers who won't be able to shoulder the cost of compliance, ultimately leading to potential failures. In many cases, we’re talking about business-to-business brands which may have placed their brand name or a tiny logo on the back of a product as part of their arrangements with a supermarket taking on the responsibility of the brand owner.”
Rob concluded: “Businesses need to check their packaging and the terms of their contracts with supermarkets to see whether they are required to include their brand on the packaging. If in any doubt, businesses should seek expert advice.
“Where the supermarket contract currently does require their brand to be included, they should consider whether there is scope to change this either now or at the point of renewal.”