Unwrapping the Extended Producer Responsibility for packaging suppliers and importers

Terry Griffin, partner, and Charlie Mather, solicitor, in our regulatory and compliance team look at the Government’s recent decision to delay Extended Producer Responsibility (EPR) packaging fees until October 2025, and the latest guidance from DEFRA and the Environment Agency (EA) for UK packaging suppliers and importers.

What are the new regulations?

The new EPR regulations, which came into force on 1 January 2025, extend the existing financial responsibilities for those placing packaging on the UK market, by broadening the obligations on packaging producers to contribute towards the costs of collecting and managing their packaging waste. They also contain a particular focus on branded packaging.

By increasing the responsibilities and financial burdens on packaging producers, it is hoped that producers will do away with unnecessary packaging, which in turn will have a positive environmental impact.

Whilst the Government has deferred the requirement to pay EPR packaging fees until October 2025, it remains necessary for packaging producers to collect and report data in line with the updated EPR data reporting regulations which came into effect in April 2024.

Implementation of EPR fees was deferred on the basis of concerns regarding economic pressures faced by UK consumers raised during a DEFRA consultation on the subject in 2023.

Upcoming reporting deadline for small organisations

An organisation is classed as a small organisation for the purposes of the UK’s packaging waste regime if it meets one of the following criteria:

• annual turnover is between £1 million and £2 million and the organisation is responsible for supplying or importing more than 25 tonnes of packaging in the UK; or
• annual turnover is over £1 million and the organisation is responsible for supplying or importing between 25 tonnes and 50 tonnes of packaging in the UK.

Large organisations are defined as those which have an annual turnover of £2 million or more and are responsible for supplying or importing more than 50 tonnes of packaging in the UK.

Owing to the greater levels of packaging waste they generate, large organisations are typically subject to more rules than small organisations, including requirements to obtain packaging waste recycling notes or packaging waste export recycling notes from accredited reprocessors of packaging waste.

In terms of recording and reporting packaging data, small organisations should have recorded packaging data for 2023, but need not report it. However, the deadline for small organisations to report packaging data recorded in 2024, is 1 April 2025.

Enforcement

Organisations that fail to meet their reporting obligations under the EPR regulations run the risk of commission of a number of criminal offences, and the prospect of prosecution by the EA for an offence committed in England. In addition, the EPR regime bestows new civil enforcement powers on the EA and its equivalents across the UK. The EA held a consultation earlier this year on the topic of how it proposes to apply its new civil powers, which may be triggered as a result of less serious breaches of the EPR regime where no criminal offence has been committed.

The EA has said that following the consultation, it intends to update its Enforcement and Sanctions Policy, specifically by adding a new annex to cover its approach to EPR enforcement, a draft copy of which was made available as a part of the consultation.

From the draft annex it appears that where a breach of the EPR regime triggers the potential for both civil and criminal liability to apply, the EA will consider the nature and circumstances of the breach to determine the most appropriate response, taking into account factors such as culpability and harm, including environmental harm and harm to the integrity of the regulatory regime.

If you are investigated by the Environment Agency, or asked to attend a voluntary interview under caution, you should take legal advice as soon as possible.

Should you require advice on the EPR regime, or you or your business are the subject of a connected regulatory investigation, Harrison Drury’s regulatory and compliance team can assist you, please get in touch on 01772 258 321.