Is it over wrapped?

This article was written by Louise Nahon, Solicitor at Pinsent Masons.

The Packaging (Essential Requirements) Regulations 2003 (the "Essential Requirements Regulations") are one of the UK regulations, together with the Producer Responsibility (Packaging Waste) Regulations, implementing the European directive on Packaging and Packaging Waste. Whilst the Producer Responsibility regulations concentrate on the minimising of packaging waste through recovery and recycling, the Essential Requirement Regulations concentrate on measures to be taken at source, such as designing to:

• minimise weight and volume of packaging
• permit re-use and recovery, and
• minimise noxious or hazardous substances

The Essential Requirement Regulations place these duties on packagers (except for branded products, where the onus falls on the brand owner) and importers. Thus as well as manufacturers and packagers, retailers selling own brand products are also caught by these regulations, which cover industries from the food industry, to pharmaceuticals, home cleaning products, beauty products, electronic products, toys.

Over-packaging is very much in the news these days with consumers being advised to leave over-packaged goods at the check out. So it is the requirement to minimise weight and volume of packaging, subject to maintaining "the necessary level of safety, hygiene and acceptance for the packed product and for the consumer", which is of interest here. But how in the light of the vagueness of the wording of the provisos can the manufacturer or the retailer ensure that it is complying? What factors can it take into account and what should be the approach of the enforcement authorities, in this case Local Authority Trading Standards departments?

Guidance
A number of guidance documents, codes and surveys have been produced by the DTI , INCPEN and LACORS in relation to this minimisation of packaging, and European compliance standards have also been issued. The main points to come out of these are:

• There was an acknowledgement that when looking at minimisation of packaging, Trading Standards were not always fully aware of the complexities of meeting all the demands required of packaging namely the containment, protection, handling, delivery and presentation of products as well as other legal requirements. There was therefore a need for education on both sides and a need for industry and trading standards to work hand in hand. Generally, there was a cost incentive to industry in cutting packaging weight (product cost) and volume (e.g. display shelf or transport vehicle utilisation) and in many cases therefore industry would have worked to optimise such factors irrespective of the regulations.
• Packaging should be approached on the basis of a complete packaging solution by taking into account not just sales packaging, but also grouped packaging (e.g. where items come in a tray/distribution pack) and transport packaging. For instance a sales packaging weight increase e.g. a double skin container should be balanced against a larger weight reduction in transport packaging for a product needing less protection.
• Practical considerations need to be taken into account e.g. feasibility of tooling, packing line speeds, minimum headspace required for accurate and quick filling, standardised pallet systems, product identity and brand recognition, user expectations, convenience, ease of handling, minimum size of labelling, childproof locks. For instance the apparent underfilling of dishwasher tablet packages, were in fact a result of further settlement after packaging. Filling to the brim at packaging stage would need manual filling, clearly uneconomic.
• Cost impact of further packaging measures, if deterring consumers from purchasing, may also be taken into account (see above).
• Enforcement should be based on cooperation and a commonsense approach and be consistent across different Local Authorities, following the lead from the Home Authority of the business where applicable.

Enforcement approach

There have been few prosecutions under the Essential Requirements Regulations (or their previous 1998 enactment) so far. Up to 2004 there were comments from Trading Authorities to the effect that standards were too vague to assess the minimisation requirements especially in the context of the proviso for "acceptance for the packed product and the consumer". Where prosecutions have been successful, they have tended to be linked with offences of misleading consumers under the Trades Descriptions Act e.g. butchers placing meat in an upturned polystyrene tray inside a larger tray making the meat appear bigger than it was, or the prosecution has targeted transit packaging because the defence relating to acceptance by the consumer is less relevant in this case e.g. Office World prosecution.

The approach of Local Authorities may change somewhat in the context of the local environment minister Ben Bradshaw's statements in November 2006 to the effect that the customer should report retailers who use excessive packaging to Trading Standards and the resulting press coverage and increasing awareness of the public.

Companies themselves will also feel separate pressure to reduce packaging. There are ongoing initiatives such as the Courteauld Commitment signed up by a number of major retailers and food manufacturers to cut packaging waste. Such initiatives will inevitably include cuts at source and will also feed down the supply chain.
Moreover now that the BSEN 13428 2004 standard has been published which sets out performance criteria to be taken into account in assessing compliance with the minimisation requirements, Trading Standards may feel that they have a better structure to assess compliance by.

Companies should therefore be alert to this possibility of increased regulatory activity in this field and may be well advised to include an assessment of responsible packaging within their management systems. However companies should carefully review any response to an attempt at prosecution as in many cases they will have a good practical reason to justify the packaging used.

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