Plastic

The definition of plastic might sound easy but when discussing with experts of polymers it is not easy. Article 3(1) of the SUPD defines plastic as “…a material consisting of a polymer… to which additives or other substances may have been added and which can function as a main structural component of final products…”²³⁴. Polymer is defined in REACH Regulation²³⁵ and it is clear: the purpose of this research is not to analyze the definition of polymer so it does not go further in the concept. However, Recital 11 of the SUPD states that a separated definition of plastic should be introduced since unmodified natural polymers occur in the environment. An example of such natural polymer is pulp.

Recital does not encourage to research and to make innovations in bioeconomy since the definition of plastic would also include bio-based plastics.

233 Paper and cardboard recycling reach record high across in Europe.

234 SUPD art.3(1). More of a main structural component is subchapter 5.2.2.

235 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC.

The EU has spoken highly for reducing fossil-based materials and becoming “greener”²³⁶ which is in line with Article 191(1) TFEU²³⁷. As the SUPD refers to marine litter and circular economy, the previous Commission referred also to bioeconomy²³⁸: “The bioeconomy can contribute solving the problem of plastic litter in seas and oceans via the support to research and innovation for the development of alternatives to fossil-based plastics…”²³⁹. In addition, the forest strategy from summer 2021 highlights replacing fossil-based products with forest-based materials as being sustainable and having lower environmental footprint²⁴⁰. The proposal for the SUPD states that the initiative focuses on single-use plastics and the material substitution will also promote innovative bioeconomy²⁴¹.

Article 3(1) refers to main structural component which can indicate that there are other components in a product besides the main component: can the main component then function without other helping components? If a paper cup consists over 90 per cent of fibre-based material and less than 10 per cent of polymer which is then the main structural component of the cup? The fibre-based packaging sector claims that the main structural component is fibre-based material, mainly bark transformed into pulp and later to cardboard. The polymer part helps by keeping heat in and prevents the cup from getting soggy.²⁴² The Commission in its wording of defining a single-use plastic product does not make any differences between a single-use plastic product made partly or wholly of plastic²⁴³: there is no de minimis threshold for plastic contents in single-use plastic products.

236 E.g. State of the Union Address by President von der Leyen at the European Parliament Plenary on 16 September 2020.

237 The Treaty on the Functioning of the European union art.191(1) which states that the Union policy on the environment contributes to pursuit preserving, protecting and improving the quality of the environment and protecting human health

238 The Commission defines bioeconomy as following: ”The bioeconomy means renewable biological resources from land and sea, like crops, forests…”

(https://ec.europa.eu/info/research-and-innovation/research-area/environment/bioeconomy_en). Fibre-based packaging sector using forest-based material (see subchapter 1.5) is considered as a part of bioeconomy.

239 A Sustainable Bioeconomy for Europe: strengthening the connection between economy, society and the environment 2018, p. 60.

240 COM(2021) 572 final, p. 4-5.

241 COM(2018) 340 final, p. 2.

242 How paper cups are made?, Recyclable Tetra Pak Cartons, Under the Lid: The Anatomy of a Paper Cup.

243 SUPD art. 3(2) of which more in the subchapter 4.2.2.

Another interesting thought then would follow: can microplastics such as paint then replace polymer in fibre-based single-use products? Then those products would be regulated under the Packaging and Packaging Waste Directive instead of the SUPD. Recitals 8 and 11 exclude paints, inks and adhesives from the SUPD. These products include microplastics which pose more of a threat than macroplastics in the marine environment²⁴⁴. In other words, paints, inks, and adhesives can include plastic in single-use products without being counted as single-use plastic products. This could cause interpretation disputes, such as when paint is defined as a plastic coat of a product since the Directive, in addition to excluding microplastics, does not define any content boundary for plastic which would, for example, lead to repudiation of a product.²⁴⁵

A wording interpretation of different language versions of the main structural component gives the requirement an interesting view:

• English ”… can function as a main structural component of final products…”

• Finnish “…soveltuu lopputuotteiden päärakenneosaksi…”,

• French ”… peut jouer le rôle de composant structurel principal de produits finaux…“

• German “ …als Hauptstrukturbestandteil von Endprodukten fungieren kann...”

• Swedish “ …kan användas som huvudsaklig strukturkomponent i slutprodukter...”

Some language versions are milder than others: in French the interpretation is rather theoretical (can have a role as) whereas in other languages plastic can function as (in Finnish there is no can, just simply functions as). An interesting point is how main structural component can be interpreted. In Finnish and German main structural is written in one word which also could be done in Swedish meaning clearly that main structural component of a single-use plastic product is plastic. In English and French there are two separate words main and structural. In the wording of the definition of plastic in the SUPD a polymeric component of a final product must then be structural component but also main structural component.

This would lead to a conclusion that a polymer must be a predominant element of the product. However, the Commission’s Guidelines state that a main structural component refers to the definition of plastic, not to single-use plastic products: therefore, the criterion of main structural component should be understood “…as a generic concept”²⁴⁶.

244 Xanthos and Walker 2017, p. 18.

245 Ekroos et al. 2019, p. 67.

246 C(2021) 3762 final, p. 6.