Joint Committee on Statutory Instruments Thirty-Sixth Report


Memorandum by the Department of Trade and Industry


1.  In the letter dated 20 May 1998 from the Commons Clerk of the Committee, the Joint Committee on Statutory Instruments has requested a Memorandum from the Department on the following points:

(1)  "Importer" is defined in regulation 2(2) as an importer into the UK of "packaging which is packed or filled packaging". Explain what filled packaging means.

On the first point, the definition of "importer" refers to both "packed or filled" packaging to reflect the fact that these Regulations apply to packaging containing goods; for example, a carton containing a drink. Both "packed" and "filled" are included to achieve a consistency with the terminology used in the Producer Responsibility Obligations (Packaging Waste) Regulations 1997 (S.I. 1997/648) (the 1997 Regulations) where the description "packer/filler" is used. The 1997 Regulations also implement part of Directive 94/62/EC of the European Parliament and the Council on packaging and packaging waste (the "Directive"), these Regulations implement its Articles 9 and 11. Further the term "packer/filler" is well recognised in the packaging industry and it is considered by the Department to be of assistance to adopt the relevant terminology when this can be used to implement the Directive.

(2)  Identify any words and expressions used but not defined in the Regulations, which also occur in Directive 94/62/EC and are intended to bear the same meaning. If there are such common words and expressions, explain why there is no provision in the Regulations ascribing the Directive meaning to them.

On this point, the Department is unaware of any words or expressions used in these Regulations which are defined in the Directive but which are not similarly defined and attributed the same meaning in these Regulations. These Regulations implement only Articles 9 and 11 of the Directive with the consequence that some of the definitions prescribed in its Article 3 are otiose.

(3)  Regulation 3(2) contains a saving for the application of "existing quality requirements for packaging, including those regarding safety, the protection of health and hygiene of the packed products, existing transport requirements or the provisions of Council Directive 91/689 on hazardous waste". Identify the domestic law requirements which are intended to be saved, and explain why they were not identified more specifically.

In relation to this point, regulation 3(2) of these Regulations reflects the provisions of Article 2.2 of the Directive which are relevant to the implementation of its Articles 9 and 11. The Department is of the view that it would have been impracticable and inappropriate to try and identify all the specific domestic law requirements which are generally described in Article 2.2 of the Directive having regard to the exceptionally wide coverage of packaging, which, for example, can be packaging filled with a drink or filled with a dangerous substance or toys and can be made of a variety of different materials.

(4)  Regulation 5 disapplies the Regulations in the case of certain packaging "which complies with any health and safety requirements or any other Act or enactment with which it would have been required to comply for it to be lawfully placed on the market in the United Kingdom on 31st December 1994". Identify the requirements and legislation in force at that time which are intended to be covered by the quoted words and explain why they were not identified more specifically.

On this point, regulation 5 of these Regulations implements the transitional provisions provided for by Article 22 of the Directive. As with the subject matter of the third point and for the same reasons, the Department is of the view that it was impracticable and inappropriate to try and identify the requirements and legislation in force in the United Kingdom on 31 December 1994.

(5)  Regulation 6(1) places a general duty on each responsible person not to place on the market any packaging unless the essential requirements have been complied with, "provided always that placing on the market for the purposes of this regulation shall not occur in respect of reused packaging". Explain the purpose and effect of this proviso.

In relation to this point, it is one of the central aims of the Directive that packaging is reused, to be in line with the European Community strategy for waste management. These Regulations do not directly implement those parts of the Directive which concern the encouragement of reuse systems of packaging but they do require the responsible person in respect of packaging (as defined in the Regulations) to ensure that the packaging complies with the essential requirements on the composition and the reusable and recoverable, including recyclable, nature of packaging. Those essential requirements are set out in the Schedule to the Regulations and include, in paragraph 2, requirements specific to the reusable nature of packaging. In the circumstances, regulation 6(1) of these Regulations is formulated to avoid the application of the provisions of the Regulations to packaging when it is being reused. In the absence of the qualification incorporated in regulation 6(1) of these Regulations in respect of the reuse of packaging which complied with the essential requirements when first placed on the market, the Department took the view that when placing packaging on the market for a second or subsequent time as re-packed or re-filled packaging the responsible person would need to apply the provisions of these Regulations on each occasion before that packaging was again placed on the market. It is the Department's view that continued application of the Directive's provisions to the reuse of packaging in this way is not a requirement of the Directive as its essential requirements which must be met incorporate specific requirements as to the reusable nature of packaging. Compliance with those requirements render nugatory their future application when the said packaging is reused.

(6)  Paragraph 2(b) of regulation 13 applies sections 39 (defence of due diligence) and 40 (liability of persons other than the principal offender) of the Consumer Protection Act 1987 to the obstruction offences under section 32 of that Act as applied to the Regulations. Given that sections 39 and 40 do not apply to the obstruction offences in section 32 of the Act, explain why regulation 13(2)(b) applies those sections and how they could be relevant to an obstruction offence.

In relation to this point, for the purposes of the enforcement of the provisions of these Regulations it is the Department's policy that a defence of due diligence should be available in relation to certain of its offence provisions and, as a consequence, provision should also be made in respect of persons other than a principal offender, including those which relate to the obstruction of an officer of an enforcement authority. These Regulations are not made under the Consumer Protection Act 1987 but the Department considered it appropriate to use and apply the broad enforcement framework in that Act for these Regulations. In doing so the Department considered that it wished to give a wider availability to use sections 39 and 40 of the Consumer Protection Act 1987 when applied to the provisions of the Regulations, which include the provisions in section 32 of that Act.

(7)  Given that under regulation 15(1) offences under regulation 14(a) are triable either way (that is, both on summary conviction and on indictment), ought not the maximum fine on summary conviction (paragraph (a) of regulation 15(1)) to have been expressed in terms of the "statutory maximum" and not as "a fine not exceeding level 5 on the standard scale"?

On the final point, the Department accepts that regulation 15(1)(a) of these Regulations should refer to "the statutory maximum" and not to "a fine not exceeding level 5 on the standard scale". The Department notes that the maxima in both cases is currently £5000 but it acknowledges the error and undertakes to rectify this at the first available opportunity.

27th May 1998

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