The legal ins and outs of recycling

The packaging waste regulations ruling explained

by Richard Williams of thePublican.com's legal team of experts from London solicitors Joelson Wilson​

Many of you will have read with concern reports on this site about a recent High Court ruling relating to packaging waste regulations which will have far reaching effects throughout the licensed trade.

Packaging regulations were introduced in the UK in 1997 to comply with a European Directive, designed to encourage reduction and recycling of packaging waste.

Prior to the ruling in May of this year, it was assumed that obligations to recycle packaging in the licensed trade fell on the brewer or supplier of drinks. This was because pubs were considered to be final users of bottles and brewers were regarded as "sellers" of the bottles.

However, the judicial review hearing has established that the obligation to recycle beer, soft drink and mixer bottles, supplied to licensed premises for consumption on site, rests with "sellers". It has been established that "sellers" are not brewers or manufacturers of drinks, but those premises serving drinks in or from bottles to customers. This is the case even if the bottles are retained by the publican and not physically transferred to pub customers.

Many smaller and medium-sized businesses will not be affected by the changes. The regulations only apply where the business handles 50 tonnes of packaging per year and has an annual turnover of £2m or more.

Therefore, any pub company with a number of outlets, which fulfils the requirements set out above, will have to comply with the regulations and will be obliged to recycle packaging waste. In the case of glass bottles, 48 per cent of these containers must be recycled.

Brewers will still be subject to the regulations, but they will now be considered as "packers/fillers" under the legislation and their obligation to recycle will be reduced to 37 per cent.

The Environment Agency has recognised that the biggest impact of the ruling will be felt by pub, club, hotel and restaurant chains. However, the changes will also extend to other types of packaging suppliers.

Hotels, for example, will be considered "sellers" of other packaging, such as bath and toiletry products, and premises serving food are "sellers" of milk, sauce and other catering portion packs. Recycling requirements will extend to these businesses as well.

Businesses in the UK recycled 42 per cent of packaging waste in 2001, but it is recognised that obligations this year are even greater and the Environment Agency offers an advisory service to businesses concerned about complying with their obligations. It can be contacted on 0845 933 3111, or via its website at www.environment-agency.gov.uk.

Although small pub companies and individual pub owners are not affected, large pub companies with managed or tenanted estates will have to comply with the legislation. I would advise any company that may be affected by the ruling to seek advice from the Environment Agency.

Businesses affected by the ruling must comply immediately with the recycling requirements and are obliged to register with the Environment Agency (for businesses in England) or with an appropriate compliance scheme by December 2002.

Existing registered companies may need to check and recalculate their obligations to recycle as a result of the ruling. Any business failing to comply with the legislation will be subject to enforcement action, including prosecution and potentially large fines on conviction.

I have spoken to publicans about recycling and it is clear that many small businesses that are not legally obliged to recycle bottles and other waste do so on a voluntary basis.

I am told that some councils charge to take bottles away while others provide this service for free.

Clearly it is in all of our interests to recycle waste - but I do hope that these products are actually being recycled following collection and not put in landfill sites. I would like to hear from anybody involved in the recycling industry about what happens to waste, such as bottles collected from licensed premises. Are they re-used, crushed and remanufactured, or used as aggregate? I shall report to you on any comments I receive.