1.1 The Environment Department of the Government of Maharashtra has recently issued the Maharashtra Plastic and Thermocol Products (Manufacture, Usage, Sale, Transport, Handling and Storage) Notification, 2018 ("Plastic Ban Notification") through which the manufacture, transport, distribution, wholesale and retail sale, usage, storage and import of certain plastic products has been prohibited. The Plastic Ban Notification has been issued by the Government of Maharashtra by virtue of the powers derived from clauses (1) and (2) of section 4 of the Maharashtra Non-Biodegradable Garbage (Control) Act, 2006.
1.2 The reason cited for imposing a ban on such plastic products is the threat imposed on the environment due to the leaching of chemicals from plastic and the threat it imposes on humans and wildlife. Such prohibited products are those which contain high polymer and include plastic bags and pouches, disposable cutlery, plates and containers made of plastic and thermocol, non-woven polypropylene bags, plastic wraps, plastic and thermocol decorative items and plastic packaging for food items besides others. While the Plastic Ban Notification seeks to regulate all kinds of plastic products, it excludes compostable plastic bags, plastic used for packing medicines, plastic bags and products for export and food grade virgin plastic bags above 50 micron thickness.
1.3 The Government of Maharashtra has issued the aforesaid Plastic Ban Notification on 23.03.2018 thereby providing a one-month period for compliance and safe disposal of the banned plastic products by all concerned including manufacturers/ producers, sellers/ retailers/ traders, users as well as local bodies. Thereafter as per the powers provided under section 12 of the Maharashtra Non-Biodegradable Garbage (Control) Act, 2006 fines may be imposed on the violators.
2 LAWS TO REGULATE PLASTIC
2.1 Maharashtra is the eighteenth state in India to have imposed a ban on plastic. However it is one of the earlier states to have contemplated regulation of the use of plastic and this is why it had enacted the Maharashtra Non-Biodegradable Garbage (Control) Act, 2006. The Plastic Ban Notification is an extension of the earlier statute of 2006 as power to issue the notification has been derived from it. Interestingly, the 2006 statute was enacted to regulate the use of non-biodegradable material like plastic but it did not seem to have achieved its purpose.
2.2 The Central Government came up with the Plastic Waste (Management and Handling) Rules, 2011 to regulate the handling and disposal of plastic waste in India. This law was further revised in 2016 through the Plastic Waste Management Rules 2016 ("Plastic Rules 2016") which provided for the increase in thickness of plastic sheets and carry bags from 40 to 50 microns; Extended Producer's Responsibility ("EPR") which would ensure a system of collecting back plastic waste; phasing out non-recyclable multi-layered plastic; laying down the responsibilities of the plastic waste generators, local bodies, retailers and street vendors; concept of pre-registration fee for those providing plastic bags and ways of utilizing plastic waste.
3 THE CHALLENGES
3.1 The Plastic Ban Notification seeks to prohibit the usage of harmful plastic products and regulate the usage of other forms like PET or PETE bottles made of Bisphenol-A free material, which are considered less harmful. While it seeks to create a buy-back depository mechanism for PET or PETE bottles above 0.5 litres, those below 0.5 litres have been completely prohibited. The reason for the distinction based on quantity and not the nature of plastic used has not been provided. The notification provides for pre-defined buyback prices for such bottles to be printed on the bottles. It also provides for buyback price for plastic bags used for packaging milk so that they are collected back and recycled. Such buy back is pursuant to a Depository Mechanism, which does not exist at the moment. The Notification alongwith the Plastic Rules 2016 envisages the manufacturers, producers, sellers and traders under EPR to develop such a mechanism.
3.2 A number of officers have been authorized and empowered for the implementation of the Plastic Ban Notification and people and organisations are even allowed to complain to such officers against any offence in this regard. However, not much seems to have been done in terms of building the supporting infrastructure for the efficient and effective implementation of the Plastic Ban Notification. This is despite the Plastic Rules 2016 having been in force for more than two years already and providing for what the Plastic Ban Notification also seeks to achieve.
4. KCO COMMENT
4.1 The Plastic Ban Notification has been issued well within the powers of the State Government. The reasons for imposing such a prohibition and regulation on manufacture, sale, usage etc. of plastic has been provided and is in the interest of environment protection and the health of animals and human beings. Such a prohibition on plastic usage in the State of Karnataka has also been upheld by the Southern Zonal Bench of the Hon'ble National Green Tribunal earlier this year1. However, the Plastic Rules 2016 which was enacted on 18.03.2016 and was to be effectively implemented within two years with most of the prescribed steps to be taken by the concerned authorities within an year, is yet to be implemented appropriately and neither the necessary infrastructure for collection and disposal is in place nor is there an effective mechanism to implement the EPR.
4.2 It may be noted that such a blanket ban on the manufacture, sale, usage etc. of plastic is not feasible, especially given the one month time to eclipse the usage. Further, retailers and small shop owners may face difficulty in sale of such products outside the State of Maharashtra, as this has to be done within a month, i.e., before 23 April 2018. The question of usage of plastic for packaging products is in any event sub-judice before the Division Bench of the Bombay High Court under a Writ Petition and hence it would be interesting to note the inter-play between the Notification and the outcome of the writ.
4.3 The purpose of reasonable prohibition and regulation is to ensure safe usage of plastic which does not adversely affect the environment, human and animal health and aquatic flora and fauna. It is therefore important that a reasonable classification has to be done to ensure that plastic which is safe is allowed to be used with adequate mechanisms in place to manage and recycle such forms of plastic. More importantly, awareness and training has to be created in this regard within the various stakeholders. At the current stage the Notification envisages a number of steps for its effective implementation.
4.4 Prohibition has to be primarily based on the nature and specification of the plastic being used and not on the basis of the product for which it is being used, be it milk or anything else. Also, if PET and PETE bottles are being allowed for capacity above 0.5 litres, there is no justification provided as to why it would not be allowed for lesser quantity as the composition of the bottle material remains the same. With plastic usage being rampant in not just the State of Maharashtra but the entire country despite prohibitions and restrictions by various states, such bans would be feasible only if suitable alternatives to plastic are provided at competitive rates. Also, the cost of disposal and management of plastic has to be reasonable and this would happen only with adequate awareness and necessary infrastructure in place.
The views expressed in this memorandum are subject to the following assumptions and qualifications:
- This memorandum is based on our understanding of the law and regulations of India prevailing as of the date of this memorandum. However, there can be no assurance that the regulators may not take a position contrary to our views. The interpretation given by Indian courts or regulators can be different from the views expressed in this memorandum.
- This memorandum may not be relied upon by any person other than to whom it has been sent, nor may it, or any part of it, be quoted or referred to in any public document or filed with any government agency, regulatory or other authority or any other person without our prior written consent.
1. KK Plastic Waste Management Pvt Ltd v State of Karnataka, Order dated 13.01.2017.
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