Page 24 - EngineerIt April 2021

LEGAL OPINION

Over-extension of Extended

Producer Responsibility?

By Garyn Rapson, Paula-Ann Novotny and Emma Bleeker from Webber Wentzel

South Africa recently published a set of Extended Producer Responsibility (EPR) regulations, which
aim to extend companies’ financial or physical responsibility for certain identified products to their
post-consumer stage. Contrary to international best practice however, government has
over-extended the reach of this responsibility, which raises a host of challenges.

he EPR regulations and This is because the brand owner is and brand-owners, and the identified
associated sector schemes were typically the entity that has the power products are similarly defined to
Tpublished and came into force on to influence or specify the design of the include packaging components pre-
5 November 2020. Before this, existing product. If product designs are to be final saleable product.
laws had contained some elements of changed to make them easier to recycle Government’s rationale for extending
EPR and sector collection schemes or more valuable in the recycling value the EPR scope is predominantly informed
had largely been run by voluntary chain, then it is typically the brand owner by the historic approach which has been
industry organisations. This is the who must make, or at the very least, at play in the market until now, under
first comprehensive set of regulations agree to this decision. From a consumer voluntary industry-driven schemes.
seeking to regulate EPR measures in point of view, it is also the brand owner The Packaging Council of South Africa
South Africa. The new EPR regime who is associated with any such products (PACSA) (now Packaging SA) and The
applies to producers of paper, packaging, littered on the side of the road – if you Glass Recycling Company (TGRC) have
some single-use products, electrical see a Coca-Cola bottle on the floor, you been operating as voluntary industry
and electronic equipment and lighting consider that the bottle was made by a bodies which promote product collection
equipment, with designated ‘identified bottle manufacturer, not Coke. and recycling through their members,
products’ within each sector. As the person who introduces a with membership consisting principally of
Defining the scope of EPR regulation packaged product onto the market, it is converters and thereafter of associates
is crucial. Internationally, the principle thus the brand owner who should fulfil (the latter being the major raw material
of EPR is to hold the brand owners the extended producer responsibilities for suppliers, material organisations, brand
of certain products on the market that product, according to international owners, retailers and other organisations
accountable for the waste generated best practice. Arguably, this is also the and associations with interests in the
by their products at the end of their intention of the empowering provisions in industries). Manufacturers and converters
life cycles. For example, in Canada the National Environmental Management: in these sectors have thus supported (and
(British Columbia), a beverage company Waste Act of 2008, which applies EPR pushed for) the government’s extension
would be defined as a producer (the measures to the post-consumer stage of of the EPR scope to their factions, in
manufactured product is used in a the product, i.e. the product which has order to formalise the current practice
commercial enterprise, for sale or gone to market, not the product as it of self-regulation in South Africa’s
distribution under its own brand), so evolves through the supply chain. industries. Government’s reining in of
this company would be required to set South Africa has, however, a wider scope of manufacturers and
up or join a scheme which ensures that adopted a wider EPR scope, at least importers of products also seems to align
the beverage-filled bottles are returned insofar as the paper and packaging with its idea of a circular economy, i.e. to
or recycled post-consumption. In most industry is concerned. Under the new allocate responsibility for the impact their
international jurisdictions, it is therefore EPR scheme, responsibility partly products have on the environment - from
the person whose activities produce lies with the manufacturer of the manufacture to the day they are discarded.
waste / the person who sells a final packaging, e.g. Mpact, Sappi or Mondi. South African industry players have
product, who is considered to be the Producers are thus widely defined voiced concerns that placing EPR only on
producer for purposes of EPR regulation, under the EPR regulations to include brand owners is likely to fail, with major
rather than the person who manufacturers the full value chain of manufacturers, brand owners intending to set up their
the packaging. converters, refurbishers, importers own producer responsibility organisations

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