Extended Producer Responsibility in Theory and in Practice:
Requirements of EPR for Fibre-Based Packaging Sector in the EU Legislation
University of Eastern Finland UEF Law School
Master’s thesis 27th August 2021
Writer: Satu-Marja Tenhiälä
Supervisors: Topi Turunen and Seita Romppanen
Abstract
UNIVERSITY OF EASTERN FINLAND
Faculty
Faculty of Social Sciences and Business Studies
Unit
Law School
Author
Satu-Marja Tenhiälä
Name of the Thesis
Extended Producer Responsibility in Theory and in Practice: Requirements of EPR for Fibre-Based Packaging Sector in the EU Legislation
Major
Environmental and climate change law
Description
Master’s thesis
Date
27.8.2021
Pages
XI + 63
Abstract
Extended producer responsibility (EPR) has become an important tool to foster the enforcement of circular economy requirements on the European Union policies playing as a connective tissue between different legislative and policy fields. EPR has been seen as an economic instrument to stimulate better product design in order to reduce waste management costs. Besides product design EPR puts an obligation on producers to take operational responsibility for the end-of-life phase of their products.
This study focuses on EPR and what it means for the fibre-based packaging sector. The research seeks answers to questions of how the EU regulates EPR in the sector. In addition, the paper compares theories behind EPR between the practice of EPR in the EU regulations. The study focuses on Waste Directive, Packaging and Packaging Waste Directive and the Single-use Plastics Directive (SUPD) which all have relevance on the fibre-based packaging sector.
A successful EPR requires several policy elements since one element alone cannot guarantee success:
product selection mechanism, take-back mechanisms, product design goals, product recovery and performance goals, and enforcement, penalties and proper implementation. All the elements can be found in the legislation, although the SUPD seems to highlight them the most affecting the fibre- based packaging sector by indicating a list of products which must be covered by EPR.
Key words
EPR, circular economy, fibre-based packaging, waste, packaging, single-use plastics, European Union
TABLE OF CONTENTS
1. INTRODUCTION ...1
1.1 EPR in the Context of Circular Economy ...1
1.2 Problem Setting and Research Questions ...2
1.3 Methodological Framework ...3
1.4 The content of the research ...6
1.5 Fibre-based Packaging Sector ...7
2. EPR IN THEORY ...9
2.1 The Concepts of EPR ...9
2.1.1 The Main Idea Behind EPR ...9
2.1.2 Responsibilities of EPR ...12
2.1.3 Principles Affecting EPR ...14
2.2 Elements of EPR Legislation ...16
2.2.1 Product Selection ...16
2.2.2 Take-back Mechanisms ...18
2.2.3 Product Recovery and Performance Goals ...20
2.2.4 Product Design Goals ...21
2.2.5 Enforcement, Penalties, and Implementation ...22
3. EPR IN PRACTICE: WASTE DIRECTIVE AND PACKAGING AND PACKAGING WASTE DIRECTIVE ...25
3.1 Waste Directive as an EPR Framework ...25
3.1.1 Article 8 for General Requirements ...28
3.1.2 Article 8a Provides General Minimum Requirements for EPR Schemes ...31
3.2 Packaging and Packaging Waste Directive ...35
4. ALERT FIBRE-BASED PACKAGING SECTOR: HERE COMES THE SINGLE-USE PLASTICS DIRECTIVE ...41
4.1 Background of the SUPD ...41
4.2 Concepts of the SUPD ...42
4.2.1 Why Are the Concepts Important? ...42
4.2.2 Plastic ...42
4.2.3 Single-use Plastic Product ...45
4.2.4 Producer ...46
4.3 EPR under the SUPD ...48
4.3.1 Products of Article 8 ...48
4.3.2 Obligations of EPR Schemes ...51
5. CONCLUSIONS ...58
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ABBREVIATIONS
EPR Extended Producer Responsibility
EU European Union
OECD Organization for Economic Cooperation and Development
PRO Producer Responsibility Organization
SUPD Single-Use Plastics Directive (2019/904)
TFEU Treaty on the Functioning of the European Union
FIGURES AND TABLES
Figure 1. Responsibilities of EPR after Lindhqvist.
Table 1. The minimum targets by weight for recycling of plastic and paper and cardboard.
1. INTRODUCTION
1.1 EPR in the Context of Circular Economy
In 2015 the Commission of the European Union (EU) adopted its first circular economy action plan. The plan starts by stating that “…circular economy, where the value of products, materials and resources is maintained in the economy… and the generation of waste is minimized, is an essential contribution to the EU’s efforts to develop a sustainable…economy”.1 The purpose of circular economy is to reuse and to recycle
“products and materials as long as possible” before they become waste at the end of their life cycle. Extended producer responsibility (EPR) has become an important tool to foster the enforcement of circular economy requirements in the EU policies playing “as a connective tissue between different legislative and policy fields”2.
Even though it can be argued if EPR is a right tool for environmentally friendly product designing3, according to the Commission EPR is …”an approach to ensure that producers contribute financially to the costs of waste management: it is an economic instrument to stimulate better product design to reduce such costs”. Additionally, EPR “…puts an obligation on producers to take operational responsibility for the end-of-life phase of their products”.4 Although EPR provides “opportunities to encourage” both “design and management of products”, it is considered to be only one available tool to policymakers.
Paying attention, for example, to taxes and charges can also play a significant role in circular economy.5 However, when planning appropriate laws and policies a multidisciplinary background should be kept in mind. For instance, to tackle a better management of plastic waste requires an understanding of physical properties of plastics, evaluation of a plastic product involves engineering and science in relation, and, in addition, behavioral science is needed to understand the way in which consumers use a product.6
1 COM(2015) 614 final, p. 2.
2 Pouikli 2020, p. 492.
3 Kautto et al. 2021, p. 22.
4 SWD(2019) 91 final, p. 13-14.
5 Hogg et al. 2020, p. 3.
6 Malcolm 2019, p. 212.
EU law typically requires Member States to ensure that EPR is to be established at a national level, and through harmonization of laws EPR can function in different ways in the Member States. EPR is an important part of EU policy on different product types, such as vehicles7 and electronic goods8, and since summer 2021, also on single-use plastic products which is closer studied in the chapter 4. EPR policy solutions need to be both optimal and politically feasible since besides producers of products, EPR policies and legislative measures must pay attention to consumers and to their sorting efforts and consumption decisions9. Since the circular economy pays increasingly attention to “levels of high-quality recycling, improvements in waste collection and sorting” are needed. The costs of collection and sorting are usually the costs paid by producers10 of products according to EPR and therefore being a source of financing, the Commission believes that if EPR is well implemented across Europe it will help to improve the efficiency of the recycling process.11
1.2 Problem Setting and Research Questions
The purpose of this study is to examine how the EU regulates EPR. The paper focuses on fibre-based packaging sector since the products of the sector can be circulated but they can also replace fossil-based materials, such as plastics. In addition, after the approval of the SUPD12 fibre-based packaging sector is put into a rather interesting position as discussed further in the chapter 4. Although EPR seems to belong to today’s waste regulation and policies the concept has, surprisingly, not been studied much. There are researches done regarding EPR in certain areas, such as WEEE Directive13 and EPR in the United States, but as for university thesis there is a lack in the area. Riikka Laaksonen wrote her thesis on EPR in food packaging waste mainly focusing on the Finnish EPR14 but the focuses of her study
7 Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles.
8 Directive 2012/19/EU of the European Parliament of the Council of 4 July 2012 on waste electrical and electronic equipment (WEEE).
9 Berger and Nagase 2018, p. 206.
10 Referring e.g to manufacturers of products depending on the regulation.
11 COM(2015) 614 final, p. 9 and COM(2018) 28 final, p. 16.
12 Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment [2019] OJ L 155.
13 See footnote 7.
14 Laaksonen Riikka, ”Pakkausjätteiden tuottajavastuu erityisesti elintarvikepakkausjätteiden näkökulmasta”.
Turun yliopisto 2016.
and this paper are different. Especially, EPR in relation to SUPD which is in the focus of this study, has not researched.
The research tries to provide answers to the following questions:
• Concerning the fibre-based packaging sector how does the EU regulate EPR and what does it mean for the sector?
• EPR theories are studied in the research and the comparison between the theory and the EU EPR legislation is done. The question then follows whether the regulation in in the EU is similar to the EPR in theory.
The research questions are answered at the EU and theoretical levels without considering their implementations at the Member States. EPR allows the Member States to make producers’ responsibilities for issues such as financing but since Member States have considerable flexibility in the implementation of the requirements it would be a study of its own to research how the harmonization is done. Since the study provides a comprehensive picture of EPR in the EU legislation, the theory behind the concept is studied first. This ameliorates to understand what actually lays behind the legislation. After the introduction of theory or main ideas behind EPR the study concentrates on three legislation, namely Waste Directive15, Packaging and Packaging Waste Directive16, and SUPD, which are all relevant Directives for the packaging products made of fibre.
1.3 Methodological Framework
The research method used in this work is a legal analysis which is also a starting point for interpreting EU law17. Legal doctrine raises a normative question of how the current legal act should be interpreted. In order to do that evidence must be taken into discussion.18 The Union law is laid down by the Union and its institutions – the Commission, the European
15 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives [2008] OJ L 312.
16 Directive (EU) 2018/852 of the European Parliament and of the Council of 30 May 2018 amending Directive 94/62/EC on packaging and packaging waste [2018] OJ L 150.
17 Penttinen and Talus 2017, p. 28.
18 Soininen 2016, p. 59-60.
Parliament and the Council – in cooperation. Legislative power within the Union is shared by the institutions and it is often difficult to determine the true intentions of the EU legislator.19
A hermeneutical research highlights holistic understanding and interpretation of individual matters20. In the legal doctrine interpretation is done by studying normative sources, such as statutory texts and principles of law, but also authoritative sources, such as case law. Without going any deeper into Hans Kelsen’s Pure Theory of Law, where he created a structure for norm pyramid where legal doctrine was seen as a matter of internal logic which refers to the Western tradition to interpret law, van Hoecke argues Kelsen underestimated the importance of interpretation in law and the influence of soft law instruments.21 In addition to pure written norms, these elements provide a solid base for interpretation of legal doctrine. According to Tiller and Cross legal doctrine refers to strict rules which help at the time of dispute but rules also need to pay attention to the manner in which they actually function in the society22. Kolehmainen states that legal doctrine is the science of good argumentation. Since it is characteristic for legal doctrine method that a norm can be argued, the argument must be done so that it can be understood and therefore a disagreement concerning a conclusion can be based on the given argumentations. The question is who is making the best argumentations.23
In the EU legislation the interpretation – to which the argumentation can then be based on – can be done in several ways24. The starting point is that EU law is interpreted literally. This is to secure legal certainty and the requirements found in Article 13(2) of the Treaty on European Union stating the limitations of powers25. Literal interpretation or textualism can be defined as the action of explaining what a normative text conveys by looking at the usual meaning of the words contained therein. The principle of legal certainty requires staying as
19 Lenaerts and Gutiérrez-Fons 2013, p. 22.
20 van Hoecke 2011, p. 4.
21 van Hoecke 2011, p. 11-12.
22 Tiller and Cross 2005, p. 3-4.
23 Kolehmainen 2015, p. 8.
24 See e.g. Penttinen and Talus 2017, p. 28-32.
25 Art. 13(2) TEU states that “Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation”.
close as possible to wording of an EU law provision.26 The bottom line in textualism is that law should be interpreted on the basis of its written version, however, the EU’s multilingualism may emphasize problems in interpretation. Therefore, the textual approach is not always sufficient.27 There can be situations where different language versions of a same statute indicate differently. Although there must be linguistic equality28 among all EU languages there may occur situations where other interpretation methods must supplement literal interpretation.
As noted by Advocate General Jääskinen “…the literal interpretation and the clear meaning may not be synonymous as the literal meaning of a provision may be ambiguous29”. The teleological interpretation is goal-directed: a norm is interpreted by looking at its meaning and objectives. The argumentation is based on the objectives of the provisions, and it should be available only when textualism fails to provide a clear interpretation.30 Teleological interpretation seeks to find the ultimate purpose –telos– of the provision and therefore the interpretation may not call into the literal meaning of the provision. When it comes to environmental law, the purpose of provision, such as an environmental problem, must be understood31. The Treaties of the Union32 are imbued with purpose-driven functionalism:
the provisions of secondary law provide a link between the objectives and the means to attain them. Due to the purpose-driven functionalism it has been observed that the European Court of Justice has given priority to teleological interpretation.33
Systematic interpretation means that a norm is put into the context and interpretation must consider the EU law as entirety. The aim of the systematic interpretation is to achieve effective execution and integrity of the Union law.34 The interpretation is based on the premise that the legislator is a rational actor: each provision of the EU law must be interpreted in a way as to guarantee that there is no conflict between any EU legislation
26 Lenaerts and Gutiérrez-Fons 2013, p. 6-7.
27 Turunen 2018, p. 25.
28 Art. 55 TEU requires equality treatment among languages.
29 Opinion of Advocate General Jääskinen on case C-582/08 para 27.
30 Turunen 2018, p. 26-28.
31 Turunen 2018, p. 29.
32 The Treaty on the European Union and the Treaty on the Functioning of the European Union.
33 Lenaerts and Gutiérrez-Fons 2013, p. 13 and 24.
34 Penttinen and Talus 2017, p. 30.
taking into account the legal framework around it35. As Lenaerts and Gutiérrez-Fons researched the systematic interpretation, they found out that the interpretation has a double objective. First, it “…seeks to define a scope of application which is specific to the EU law provision in question”. Second, it “…seeks to interpret the EU law provision in harmony with the general scheme in which it is placed”.36
This study has elements of all the above interpretation methods when analyzing the legal doctrine of EPR in the EU legislation. The literal interpretation is done when focusing on articles regarding EPR: even several languages are studied when trying to understand the main structural component of a single-use plastic product37. The teleological interpretation highlights the purposes of EPR provision and the systematic interpretation tries to see EPR as a holistic concept. In addition, there is also a comparison made between EPR in theory and EPR in practice in order to understand the ideas behind the EPR regulations. The method is interpretation which is done by comparing the intentions of EPR and the fulfillments of the regulations.
1.4 The Content of the Research
The study is structured as follows. In the first chapter of the study there is a short introduction to the subject, research questions and methodology are presented. In addition, the concept of fibre-based packaging sector is introduced. The second chapter concentrates on EPR in theory. This is important since at the beginning EPR was introduced as a theoretical concept paying attention to producers of products and regulations are based on these theoretical views. The following chapters highlight EPR in practice as referring to the regulations in the EU. The third chapter concentrates on the Waste Directive as a lex generalis for EPR. In addition, the chapter goes through the Packaging and Packaging Waste Directive from the points which are relevant for EPR. The fourth chapter dives into the more recent piece of legislation regarding EPR, namely the SUPD. The last chapter concludes the study and pinpoints the differences in the theory and legislation.
35 Lenaerts and Gutiérrez-Fons 2013, p. 13-14, Turunen 2018, p. 24.
36 Lenaerts and Gutiérrez-Fons 2013, p. 47.
37 See subchapter 4.2.1.
1.5 Fibre-based Packaging Sector
In this research fibre-based packaging sector means the business sector which uses fibres as forming structural components of their packaging materials. The sector covers all sorts of packaging, for example, paper cups, boxes, and bags for tea. Without going more into details of paper production the main raw material used to make paper and paperboard is cellulose fibre which have its source either in trees (e.g. birch, spruce, eucalyptus or pine) or in recycled paper and paperboard38. Virgin pulp is always cleaner than pulp made of recycled materials and therefore virgin fibre is the best choice in food packaging. Due to its material choices, fibre-based packaging sector is defined as bio-based sector and a part of bioeconomy. The bio-based sector produces and uses renewable biological resources, and the products substitute fossil-based ones. Wood-based side streams, such as “pulp, paper, and board can be converted into large number of new bio-based products with new functionalities”.39
The difference between paper and paperboard is weight: paperboard weights more than 250 grams per square meter, paper is lighter. Although plastic is a lighter material for packaging, paper and paperboard have many other advantages, for example, since made of renewable sources it is biodegradable, easy to combine with other materials and it is printable. Being printable is an advantage with which plastic cannot compete. When it comes, for instance, to awareness raising measures information can be printed on the product whereas plastic product needs a sticker which requires material and energy to manufacture and possible transportation before it can be attached to the product. Nonetheless, paper and paperboard do not hold liquid as well as plastic and therefore, for example, a layer or several of aluminium or plastic is needed in order to prevent leak.40
There is a growing concern over environmental effects of packaging since packaging waste poses grave environmental problems. Global packaging production is also increasing: one of the reasons is that middle class as new consumers is becoming bigger worldwide41. When asking consumers of environmental friendliness of a packaging they think of the end of life
38 Riley 2012, p. 190.
39 SWD(2018) 431 final, p. 23 and 26.
40 Riley 2012, p. 180-181 and Fellows 2016, p. 973-974.
41 Boesen et al. 2019, p. 1193.
attributes of packaging meaning biodegradability, reusability or recyclability but pay very little attention to activities relating to production, transport and retail use42. When asking of eco-friendliness material in packaging consumers prefer fibre-based materials as they are seen to have a lower environmental impact than plastic materials43.
42 Herbes et al 2018, p. 203 and 215.
43 Boesen et al. 2019, p. 1194 and Magnier & Schoormans 2017, p. 745.
2. EPR IN THEORY
2.1 The Concepts of EPR 2.1.1 The Main Idea Behind EPR
Extended producer responsibility is a political and today even a legislative term supporting circular economy and life cycle analysis of a product. In 1992 the Swedish professor Thomas Lindhqvist introduced the idea of responsibilities for waste management which are to be shifted to producers of products instead of customers and authorities. He later defined EPR as “…an environmental protection strategy to reach an environmental objective of a decreased total environmental impact from a product, by making the manufacturer…
responsible for the entire life-cycle of the product… (EPR) is implemented through administrative, economic and informative instruments…”.44
Since Lindhqvist there have been many researchers defining EPR by adding some ideas to the original one referring to certain period of time, however, the main idea has stayed the same. The commonly used definition is by the Organisation for Economic Co-operation and Development (OECD). The organization started its EPR definition process in 1994 by defining EPR as a responsibility of producers to the post-consumer stage of products’ life cycles. Four years later the definition covered products’ entire life cycle.45 Today, the OECD defines EPR as “…an environmental policy approach in which a producer’s responsibility for a product is extended to the post-consumer stage of a product’s life cycle”.46 In the Commission’s report on EPR the principle is defined as a guiding principle “…which stipulates that the waste producer and the waste holder should bear the costs of waste management…”47. The thinking behind EPR is based on knowledge that producers know the best which changes are required to minimize environmental impacts of their products48.
44 Lindhqvist 2000, p. ii.
45 Lindhqvist 2000, p. 55-56.
46 Extended Producer Responsibility OECD 2016, p. 21.
47 Development of Guidance on Extended Producer Responsibility (EPR) 2014, p. 7.
48 Quinn and Sinclair 2006, p. 64, Filho et al. 2019, p. 552, Pouikli 2020, p.493.
It has been stated that “EPR is a policy principle to promote total life cycle environmental improvements of product” systems49. The Commission defined EPR as “…an approach to ensure that producers contribute financially to the costs of waste management…” and through the costs EPR, as an economic instrument, producers are stimulated to better design in order to reduce the costs50. However, EPR’s role in a life cycle has been criticized as not being the one and only tool to improve effectiveness of the life cycle of a product51. Historically, waste has been dumped in landfills or deposited in waste incinerators which cause vast amounts of air, water, and soil pollution as well as, additionally, increase green house gas emissions52. Among other countries the EU has also exported mainly waste outside of the Union which has created problems elsewhere: in 2017 China refused to import, for example, plastic as a part of the country’s environmental program53. In 2016, the EU exported 1.4 million tonnes of plastic to China and after the ban the EU exports of plastics were down to 14 000 tonnes54. The action put exporting countries into a global political crisis55 requiring a new plan from the exporters. Perhaps due to the ban, the fact that in Europe there is not enough land to be filled anymore and the need to reduce green house gases according to the Paris agreement the Union accelerated its policy options and the concept of circular economy started to achieve support among politicians.
The EU introduced “circular economy as a concept for a new Europe” in the Union’s Seventh Environmental Action Programme in 201356. The program focused on planet’s ecological limits and highlighted “…circular economy where nothing is wasted and where natural resources are managed sustainably…”57. Additionally, as moving towards circular economy the program aimed to move internal barriers for environmentally-sound recycling activities by reviewing legislations and raise public awareness. The Commission stated that the linear pattern referring to a pattern “take-make-use-dispose does not provide producers
49 Lindhqvist 2000, p. V and 29.
50 COM(2019) 91 final, p. 13.
51 See e.g. Salah 2007, p. 13-14.
52 Austin 2013, p. 222.
53 WTO Notification July 2017.
54 EU exports of recyclables to China fallen sharply.
55 Five WTO members (e.g. the US and the EU) questioned China’s import ban. See China’s import ban on solid waste queried at import licensing meeting.
56 Turunen 2018, p. 17.
57 Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General Union Environment Action Programme to 2020 ‘Living well, within the limits of our planet’ Annex point 1.
with sufficient incentives to make their products more circular” and therefore “building on the single market the circular economy can strengthen the Union’s industrial base”58.
The Union’s Seventh Action Programme included EPR as one solution to turn waste into a resource in accordance with the idea of circular economy59. Farmer states that in circular economy “a key policy element in the delivery of management of waste and materials in products is EPR” but the European Environmental Agency provided for the role of EPR financing among enabling factors of circular economy60. Financial issues seem to be the most important dimension of EPR in the EU since the Commission points out that “EPR puts an obligation on producers to take operational or financial responsibility for the end-of-life phase of their products”61. More of these obligations in the subchapter 2.2 and in chapter 3.
In general, EPR has been seen as an environmental policy which relies on market incentives:
it can be viewed as “an ecological extension of product liability law”62. EPR focuses on shifting responsibility to producers and on giving them incentives to incorporate environmental considerations on their products63. Whereas corporate social governance engaging companies to account environmental, social, and economic factors in the company’s processes are usually voluntary providing reputational impacts, EPR can be seen as a stimulating support tool for it. However, the fundamental argument has been the extension of EPR regulatory frameworks since, after all, they act as a level playing field for companies to implement sustainability activities: the “primary objective of EPR is to promote environmental aspects”.64
58 COM(2020) 98 final, p. 2-3.
59 Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General Union Environment Action Programme to 2020 ‘Living well, within the limits of our planet’ Annex point 40.
60 Farmer 2019, p. 401 and Circular economy in Europe. Developing the knowledge base 2016, p. 11.
61 COM (2019) 91 final p. 14.
62 Sachs 2006, p. 53.
63 Pouikli 2020, p. 493.
64 Hickle 2017, p. 116.
2.1.2 Responsibilities of EPR
Lindhqvist distinguished between four types of producer responsibility which are vital in understanding producer responsibility: liability, economic responsibility, physical responsibility, and informative responsibility65. According to Quinn and Sinclair if these key policy elements are addressed and responsibilities are carried out successfully there are advantages not only reducing waste but also environmental benefits, such as lowering energy consumption, green house gases and litter abatement, and increasing recycling rates66. The figure one shows the responsibilities and their relationships with each other.
Informative responsibility
Figure 1. Responsibilities of EPR after Lindhqvist67.
At the core of these elements is ownership of the product or property rights of the product as the researchers after Lindhqvist have called the core element. For Lindhqvist the ownership of the product was important since according to the main idea of EPR a manufacturer of a product retains that ownership throughout the “product’s life cycle” and is therefore “linked to environmental problems caused by the product”. Property rights, on
65 Lindhqvist 2000, p. 38.
66 Quinn and Sinclair 2006, p. 64-65.
67 See Lindhqvist 2000, p. 38.
Liability
Economic respon-
sibility
Ownership
Physical respon- sibility
the other hand, may be relevant under other responsibility schemes: for example, property rights in waste can affect treatment of waste and therefore property rights are considered more appropriate in EPR elements.68
The economic or financial responsibility can be understood as a producer covering “all or a part of the expenses” regarding, “for example, collection, recycling or final disposal of products”: Lindhqvist stated that the expenses can ”be paid directly by the producer or by a special fee”. The physical responsibility characterizes a system where a manufacturer is involved in the management of the product and its effects throughout the life cycle.69 As can be noticed EPR is focusing on the “post-consumer stage of a product’s life” although, under the ownership, a manufacturer should be responsible for the product for its entire life-cycle:
most of the existing EPR programs highlight the end-of-life management costs. This is an issue of which EPR has also been criticized for. Sachs argues that EPR forgets product design which would make environmental considerations a core element and, in addition, by focusing on post-consumer stage of a product’s life there are increasing logistical challenges for manufacturers70.
The informative responsibility refers to product labelling. A manufacturer is required to provide information on the product and on its environmental effects. Such information can be material or component lists. The liability refers to responsibility proven environmental damages caused by the product manufactured by a producer. Damages in question may occur in different stages of the product’s life cycle including use and final disposal. The extent of liability is determined by legislation, and therefore researchers after Lindhqvist have started to call liability as legal responsibility71.72
68 Lindhqvist 2000, p. iii and Steenmans 2019, p. 114.
69 Lindhqvist 2000, p. ii and 38- 39 and Steenmans 2019, p. 113-114.
70 Sachs 2006, p. 63-64.
71 See e.g. Quinn and Sinclair 2006, p. 64.
72 Lindhqvist 2000, p. ii and 38-39 and Steenmans 2019, p. 113-114.
2.1.3 Principles Affecting EPR
EPR as an environmental protection strategy relies mostly on polluter pays principle. The principle states that the costs of measures to deal with pollution should be borne by the polluter who causes the pollution. The principle is one of the cornerstones of European environment policy and today, it can be found in the Treaty on the Functioning of the European Union73.74 Manufacturer should pay either for preventing the pollution in advance or for compensating for the harm afterwards75. In the EU, the principle has taken different functions: an economic integration function referring to harmonizing internal market, a redistribution function referring to cost internalization, a preventative function and a curative function referring to damage reparation. EPR provides a practical application for the two last mentioned functions stating that harms can be prepared in advance or afterwards. EPR aims
“to ensure that the cost of a harm” is carried out by those who are responsible for the harm and that the “burden does not rest on taxpayers”.76
EPR refers to a producer of a product, but like Kalimo et al. state “there is a wide range of actions of other stakeholders along the product’s life cycle”77: who is actually the polluter?
Kalimo et al. and Sachs provide an answer: “the most obvious polluter is the consumer when at the end discarding the product”. Whereas the producer makes a product useful, the consumer makes it waste at some point and therefore it is the consumer who causes environmental impacts. Due to the impact of consumer in product’s life cycle Sachs suggests consumer-oriented taxes or ‘pay as you throw’ disposal charges. Since polluter is most likely a consumer instead of a producer there is no causal connections between environmental harm and producer in product policies.78
There are also other views on who is the polluter. Malcolm notes that the concept EPR is problematic. She says that in the EU it refers mostly to take-back schemes (see subchapter 2.2.2) but extended producer responsibility can be used to refer the life cycle of a product
73 TFEU art. 191(2)
74 Jans and Vedder 2012, p. 49.
75 Kalimo et al. 2015, p. 43.
76 Maitre-Ekern 2021, p. 6.
77 Kalimo et al. 2015, p. 43.
78 Kalimo et al 2015, p. 43 and Sachs 2006, p. 65-66.
and therefore also includes consumers. However, as she argues, the product is the source of the problem: “if the product did not exist, then the consumer could not pollute the environment by using it”.79 However, since responsibility is producers’ they “tend to pass on” at least some of “the EPR costs onto consumers through sale prices”80.
Responsibility can be considered as the other side of the coin when it comes to befitting.
Beneficiary pays principle refers to equity and to the issue that those who benefit from a specific activity should be responsible for the activity’s environmental consequences81. The principle differs from polluter pays since under beneficiary pays principle both a producer and a consumer can benefit and therefore both can be responsible for environmental harms:
the producer receives profit from selling the product and the consumer benefits from using the product.
In addition, there are also other principles linked to EPR and to circular economy, however, they do not have as much weight as the above-mentioned principles. The prevention principle addresses to risks which are known and likely to occur while carrying out a certain activity. Having its origin in waste and pollution legislation the prevention principle seeks to find a relationship between probability and the extent of damage. Once the environmental impacts are identified along the product’s life cycle, steps to reduce or eliminate impacts can be taken.82 The precautionary principle, although a central principle both in the international and in the EU environmental laws, has not an explicit definition, but, yet, it is a legal tool used to achieve environmental goals83. In the Union the European Court of Justice has clarified the principle in its decisions84 and, for example, the European Environmental Agency clarifies the principle in short as “…it is better to prevent that repair” allowing action to be taken to protect the environment at an early stage85. Whereas precautionary principle provides a possibility for a public authority to intervene before damage is likely to
79 Malcolm 2019, p. 215.
80 Maitre-Ekern 2021, p. 7.
81 Kalimo et al. 2015, p. 43.
82 Van Calster and Reins 2017, p. 34, Jans and Vedder 2012, p. 47, Malcolm 2019, p. 214.
83 Van Calster and Reins 2017, p. 30.
84 e.g. C-180/96 United Kingdom v Commission (EHR- I-226) and T-13/99 Pfizer Animal Health v Council (ECR II-226).
85 Prevention principle.
take place, in the regulation on waste it creates a preventative dimension that lies behind the additional control measures86.
In addition, eco-efficiency and principles of industrial ecology are linked to EPR. The first states that while a producer takes environmental matters into consideration in production the costs are kept to a minimum and even to be shared with others in the value chain of the product87. The latter refers to a producer’s responsibility of manufacturing products:
according to the principle producers create a desire amongst consumers to consume that product which then leads to pollution88.
2.2 Elements of EPR Legislation 2.2.1 Product Selection
A successful EPR requires several policy elements, one element alone cannot guarantee success. These elements are product selection, take-back programs, product performance and performance goals, product design goals, and enforcement and penalties. Although the elements can be named differently depending on a researcher the purpose remains the same:
the integration of the elements affects the efficiency of the program. In addition, these elements play an important role in crafting successful EPR laws. By being transparent, accountable for the public and based on an on-going research and development EPR will flourish.89
Product selection mechanisms are based on two issues: “1) a separate EPR law that is enacted by the legislature to target each particular product (the product-by-product approach) and 2) an EPR law that institutes a framework mechanism under which the state relies upon a specific set of criteria and factors when determining which products to regulate under its EPR program”. The product-by-product approach involves the state’s legislature passing a new law for each product or a product category to be regulated under an EPR take-
86 Turunen 2017, p. 187.
87 Kalimo et al. 2015, p. 44.
88 Steenmans 2019, p. 115.
89 Quinn and Sinclair 2006, p. 63 and Austin 2013, p. 239.
back program. 90 In some literature the approach is also called industry-by-industry approach since the approach involves certain products by certain industries91. For example, in South Africa a waste management act empowers environment minister to require EPR measures on the product-by-product basis: the measures have affected mostly industry-led tires recycling initiative92. The framework laws as another alternative for product selection are becoming more popular in legal solutions than the product-by-product approach93. A framework law gives “a state the ability to address multiple products under one law” based on a certain set of environmental criteria or factors. Such criteria can be, for example, reducing waste or a public demand for improved recycling and reuse. Product-by-product is more likely to guide to a provision of fewer products and may even slow down expanded implementation of EPR.94
According to the Commission all products have an environmental impact and therefore product-related environmental policies should pay more attention to products’ life cycle:
environmental impacts should be “addressed at the point in the life-cycle where they will best and most cost-effectively reduce the overall environmental impacts and resource use95”.
Life cycle approach should, in other words, include impacts which an individual product will have on the environment along its full supply chain throughout its lifetime96. The Commission has also highlighted awareness of environmental impacts of products by encouraging to “take into account environmental requirements throughout the life cycle of products” and to raise awareness of consumers of environmental impacts of products97. Sachs argues that both the Environment Action Programme and the Communication on Integrated Product Policy started “…product-oriented environmental regulations which attempt to address the full life cycle impacts of products in the Union”98.
90 Austin 2013, p. 240.
91 Rodrigues et al. 2016, p. 1275.
92 Extended Producer Responsibility OECD 2016, p. 27.
93 Eastwood et al. 2020, p. 10976.
94 Austin 2013, p. 240 and 246.
95 COM(2003) 302 final p. 3
96 Malcolm 2019, p. 216.
97 Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme art. 3(5) and 3(6).
98 Sachs 2006, p. 52.
2.2.2 Take-back Mechanisms
Product take-back requirements, which are the most commonly used EPR policy globally, involve assigning responsibility for the end-of-life managements of products. These kinds of requirements are often achieved by establishing recycling and collection targets for a product or material such as deposit-refund or different sorts of taxes or subsidies.99 There are two options for levies: they can be either hidden or visible. In the first option producers incorporate into the price of their product and in the latter one levies are passed directly onto the consumers.100 In some cases the levy is truly visible like in beverage deposit-refund but in many cases consumers do not have an idea of the cost of the purchase. As Quinn and Sinclair put it “…only through integrated (hidden) levies will broader societal goals of sustainability be reached because policies that permit visible levies do not …extended producers’ environmental responsibilities101”. According to them as a number EPR programs grow also the number of levies will grow: under all EPR programs it is ultimately a consumer who pays but EPR systems using visible levies do not achieve the same environmental benefits.102
Usually there are three alternatives for producers to organize products’ take-back schemes.
Some EPR laws require individual take-backs whereas some prefer collective and some EPR laws give an option for manufacturers to choose between individual or collective. Most EPR programs are collective in which a producer responsibility organization (PRO) implements EPR on behalf of a group of producers. The collective schemes allow producers to share costs and administrative burdens.103 In the EU many EPR programs have collective responsibility since it is simply practical and in general, the main PRO responsibilities comprise data management, financial responsibility, and organizational tasks104. It is recommended by the report for the Commission that “producers should bear reasonable and
99 Extended Producer Responsibility OECD 2016, p. 21 and 24.
100 Quinn and Sinclair 2006, p. 69 and 71.
101 Quinn and Sinclair 2006, p. 71.
102 Quinn and Sinclair 2006, p. 72-73.
103 Eastwood 2020, p. 10977.
104 Sachs 2006, p. 77, Development of Guidance on Extended Producer Responsibility (EPR) 2014, p. 151.
proportionate costs of running PROs” and those costs should be transparent. However,
“many PROs have historically been established on a not-for-profit basis”.105
Although the collective schemes may be internalized at least some of the waste management costs to industry from municipalities, the effectiveness of EPR laws is determined in achieving product redesign. The collective schemes are weak in improving the environmental profile of products.106 Therefore individual producer responsibility is more effective in redesigning products more environmentally friendly since “a producer is individually responsible for the take-back and end-of-life management of its products”107. In addition to physical take-backs, take-back schemes of individual responsibility can occur in producers recycling their own products108. The third option for EPR laws provides producers an option of whether they prefer individual or collective “responsibility for end- of-life management of products”. Austin states that “the option is not as effective as individual responsibility” but it is rational “as long as producers maintain individual financial responsibility” for their own products so that “the focus is on a producer’s new products”109.
Take-back programs can be either mandatory or voluntary110. Industry representatives and government officials seem to prefer voluntary actions stating that voluntary initiatives can deliver same ecological benefits as regulated programs and voluntary actions do not need to put environmental matters before business and employment, issues which might be hard for politicians to speak out. On the other hand, those favoring mandatory approach argue that voluntary programs lack the credibility of regulations and they have ineffectual objectives.111 Tojo et al. have concluded that mandatory EPR take-back programs are more effective since they have an ability to achieve higher collection, reuse and recycling rates112.
105 Hogg et al. 2020, p. 9.
106 Sachs 2006, p. 76, Austin 2013, p. 241.
107 Austin 2013, p. 242.
108 Sachs 2006, p. 75.
109 Austin 2013, p. 242.
110 Extended Producer Responsibility OECD 2016, p. 21.
111 Quinn and Sinclair 2006, p. 65.
112 Tojo et al. 2003, p. 31.
