UK: Producer Responsibility: Are You Affected?

Last Updated: 29 August 2006
Article by Aidan Thomson

Most businesses are well aware that, as a general rule, they could be committing one of a number of criminal offences if they fail to deal with any materials that they discard as waste in a responsible fashion. However, not all companies are fully aware of their additional waste obligations under the increasing amounts of "producer responsibility" waste legislation in the UK.

Producer responsibility legislation, which applies to any company operating in the UK, aims to ensure that businesses with a hand in manufacturing certain types of products or in putting them on the market have a degree of responsibility for the recovery and recycling of those products when the ultimate consumer discards them as waste.

The following categories of waste have become, or are soon to become, the subject of UK producer responsibility legislation:

  • Packaging and Packaging Waste
  • End of Life Vehicles ("ELV")
  • Waste Electrical and Electronic Equipment ("WEEE")
  • Batteries

The UK’s producer responsibility legislation emanates from a series of EC Directives which address a concern throughout the EU that volumes of waste produced in the above categories are unsustainable and must be controlled. The categories of waste targeted by producer responsibility legislation can be expected to increase in the coming years, as can the amounts that producers are expected to recover and recycle.

Most obviously in the aerospace industry the legislation impacts upon companies engaged in manufacturing aerospace products. However, other businesses such as airport catering companies will also need to consider their obligations, for example, under the rules relating to packaging waste.

Aerospace industry companies that import goods in the above categories from outside the EU should also beware, since they will be considered to be the producer of those goods for producer responsibility purposes.

Packaging Waste

The Producer Responsibility Obligations (Packaging Waste) Regulations 2005 require companies that turn over more than Ł2million and handle over 50 tonnes of glass, cardboard, plastic, aluminium and steel packaging every year, to register with the Environmental Agency and be responsible for a proportion of the recovery and recycling of the packaging once it is discarded. Associated Regulations restrict the materials that new packaging can contain.

ELVs

The End Of Life Vehicles (Producer Responsibility) Regulations 2005 require vehicle "producers" (i.e. those that manufacturer vehicles or import vehicles into the UK) to register with the Secretary of State and to satisfy targets for the collection and treatment of their vehicles when they have come to the end of their lives. Associated Regulations restrict the materials that new vehicles can contain.

WEEE

UK Regulations in respect of producer responsibility for WEEE are likely to appear in late 2006 and will provide that "producers" (i.e. those that manufacture electrical and electronic equipment, mark equipment manufactured by others with their own brand, or import equipment into the EU) register and be responsible for the costs of collection, treatment, recovery and environmentally sound disposal of WEEE. Associated regulations restrict the materials that new equipment can contain.

Batteries

Publication of the Batteries Directive in the EU Official Journal is expected very soon, following which the UK will have two years to implement its measures into national law. It is anticipated that the Directive will require producers of batteries to be responsible for the collection and recycling of spent portable, automotive and industrial batteries. Associated Regulations will restrict the materials that new batteries can contain.

Compliance with the above producer responsibility legislation can usually be achieved with the help of a waste management company that specialises in the recovery and recycling of the types of waste in question. In addition, it is possible in some circumstances (e.g. in respect of WEEE) for the producer to transfer responsibility for recovery and recycling to the business end user.

Failure to comply with the UK’s producer responsibility legislation constitutes a criminal offence. Directors and other senior employees can also be prosecuted in connection with any wrongdoing on the part of their company.

The message is "don’t be caught out". If you manufacture or import new products in one of the targeted categories or otherwise have a hand in bringing them to the market, you could be subject to producer responsibility legislation.

Carriage of cargo

Impala Platinum Limited v KLM and Northwest Airlines Supreme Court of Appeal, South Africa, 30 May 2006 On 30 May 2006, the South African Supreme Court of Appeal held that a named consignor can sue for loss of cargo notwithstanding that it suffered no financial loss itself.

The claimant, Impala, was the named consignor under two air waybills for carriage of precious metals to the United States on KLM and Northwest Airlines. Both consignments had been sold to different purchasers "CIP" (Carriage insurance paid). At its own expense, Impala had insured both consignments. The consignments were never delivered but Impala’s insurers paid Impala for one of the consignments (for which the consignee had not yet paid) and the consignee for the other consignment (which the consignee had already paid for).

The lower court had rejected Impala’s claim on the basis that Impala had not itself suffered any financial loss. As a result the lower court considered that Impala had no right to bring proceedings in respect of the lost cargo. The Court of Appeal reversed the lower court’s decision and held that Impala had title to sue the airlines. The Court reviewed the wording of the Warsaw Convention and considered that it clearly provided that a named consignor had a right to bring a claim. The Court noted that the realities of modern day international air carriage meant that consignors were frequently nominally involved and were entitled to sue in order to vindicate the rights of others who had a recognisable interest in the cargo.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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