Draft Environmental Protection (Single-use Plastic Products and Oxo-degradable Plastic Products) (Scotland) Regulations 2021: discussion paper

Draft Environmental Protection (Single-use Plastic Products and Oxo-degradable Plastic Products) (Scotland) Regulations 2021 - Discussion Paper

Overview

We are proposing to introduce market restrictions on single-use plastic items and on all oxo-degradable products as identified in Article 5 of the EU Single Use Plastics (SUP) Directive (EU) 2019/904. We have previously gathered views on our approach to this legislation through a twelve week Introducing market restrictions on single-use plastic items in Scotland consultation.

The next stage of the process is to make the draft regulations available for public comment. We would therefore like to invite comments from stakeholders and the general public on the draft Environmental Protection (Single-use Plastic Products and Oxo-degradable Plastic Products) (Scotland) Regulations 2021.

Responses on these draft regulations

We are inviting responses on these draft regulations by 13 April 2021. The draft regulations can be found at the end of this document.

Please respond using the Scottish Government’s consultation hub, Citizen Space (http://consult.gov.scot). Access and respond online at https://consult.gov.scot/environment-forestry/draft-environmental-protection-single-use-plastic/. You can save and return to your responses during the period 17 March 2021 to 13 April 2021, please ensure that responses are submitted before the closing date of 13 April 2021.

If you are unable to respond using our consultation hub, please complete the Respondent Information Form and send to:

Zero Waste Unit
Scottish Government
3H North
Victoria Quay
Edinburgh, EH6 6QQ

Handling your response

All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this exercise.

If you are unable to respond via Citizen Space, please complete and return the Respondent Information Form included in this document.

To find out how we handle your personal data, please see our privacy policy:

https://www.gov.scot/privacy/. Please note that no responses to this exercise will be published.

Next steps in the process

Following the closing date, all responses will be analysed and considered along with any other available evidence to help us finalise these regulations.

Comments and complaints

If you have any comments about how this exercise has been conducted, please send them to the contact address above or at SUPD@gov.scot.

Introduction

1. We are seeking views on the draft regulations for introducing market restrictions – effectively a ban – for problematic single-use plastic (SUP) items and all oxodegradable products in line with Article 5 of the EU Single-Use Plastics Directive (EU) 2019/904 (hereafter referred to as the “SUP Directive”).

2. The initial consultation, Tackling Scotland’s Throwaway Culture: Introducing Market Restrictions on Problematic Single-Use Plastic Items in Scotland, was carried out between 12 October 2020 and 4 January 2021. It sought views on the items to be covered by the restrictions, and how the restrictions might be implemented.

3. The full independent consultation analysis report has now been published on the Tackling Scotland’s Throwaway Culture: Introducing Market Restrictions on Problematic Single-Use Plastic Items in Scotland consultation page alongside individual consultation responses, where permission was granted to do so.

4. The consultation received 2,689 responses, comprising 787 substantive responses and 1,902 campaign responses. There was strong support, among both organisations and individuals, for market restrictions to be introduced on single-use plastics (i.e. single-use plastics supplied in a commercial context). Among individuals, 94% were in favour of a ban on all the items specified in the consultation paper. Among organisations, the proportion in favour of a ban ranged from 76% for single-use plastic plates, to 91% for single-use plastic balloon sticks, and for food and beverage containers made of expanded polystyrene.

5. Full and comprehensive impact assessments will be published alongside the final regulations, building upon evidence and information received throughout the consultation process.

Background

6. The Scottish Government has committed to meet or exceed the standards set out in the European Union’s SUP Directive. Scotland’s position remains clear that we aim to uphold the EU’s core values and standards.

7. We are still awaiting further detailed guidance and guidelines from the EU Commission which were expected to be published by 3 July 2020. The Commission’s guidelines, in consultation with Member States, will include examples of what is to be considered a single-use plastic product for the purposes of this Directive, and clarify the requirements set out in each article. When this further guidance is published we will consider any implications for these draft regulations.

8. The UK Internal Market Act 2020 was recently passed by the Westminster Parliament. It is currently unclear what impact the Internal Market Act 2020 may have on the final version of these Regulations. If lesser standards are applied elsewhere in the UK then it is likely the mutual recognition principle under that Act may impact on our ability to ban or restrict from the Scottish market the supply of such products produced in other nations of the UK, or imported into other parts of the UK. We are therefore continuing to engage with our UK counterparts, but are proceeding for now on the assumption that they will introduce the same or similar restrictions as those required by the SUP Directive.

9. The enabling powers we plan to use to make these regulations are contained in section 140 of the Environmental Protection Act 1990. Before making such regulations, we are required to make a draft of the regulations available for comment.

Key Considerations

10. Within our consultation paper we proposed that we would meet the demands of the EU Single Use Plastics Directive and also exceed requirements by:

• Not limiting market restrictions just to the supply but also banning the manufacture of the listed products and oxo-degradable products;
• Applying market restrictions to single-use plastic bowls, trays and platters as well as plates;
• Considering additional single-use plastic items to apply market restrictions to.

11. In particular, the analysis of consultation responses and engagement process provided an opportunity to assess evidence and understand implications of the proposals.

12. The consultation showed general support for including a ban on the manufacture of these items and whilst it is not a requirement of the SUP Directive, we have drafted regulations on the basis that manufacture will be prohibited in Scotland (with two exceptions for single-use plastic straws and single-use plastic balloon sticks.)

13. Views expressed during engagement and in consultation responses highlighted that the definition regarding single-use plastic plates, and the inclusion of bowls, should be considered carefully. There were significant concerns raised regarding including ‘bowls’ in the list of items to be banned due to complexities defining the differences between some bowls and some food containers. Feedback noted that some widely used products could be classed as a ‘bowl’, or are in fact called ‘bowls’ but used in the same way that a food container would be for the facilitation of takeaway food or liquid.

14. Food containers are subject to action under Article 4 of the SUP Directive - consumption reduction measures. Based on the feedback from the consultation, we plan to address single-use plastic bowls at that juncture. The Regulations, as drafted, would ban single-use food containers made from Expanded Polystyrene (as per the SUP Directive).

15. Single-use plastic spoons that are used for eating or serving food are within the scope of these regulations; however, single-use plastics spoons that are used for medicines are not covered by these regulations. Medicine spoons fall out with the definition of ‘single-use plastic cutlery’, so whilst there is no explicit exemption within the draft regulations, spoons (such as those supplied to measure out liquid medicine doses and measuring spoons for measuring out a quantity of powder that may be diluted) are not covered.

16. Additionally, at this time the draft regulations do not include any additional items beyond those specifically proposed in the original consultation. We will consider how to take forward action on further problematic single-use items in due course and utilise evidence offered throughout this process when doing so.

17. We have included targeted exemptions to the offences that will be created by these regulations to support independent living and provide access to single use plastic items where necessary for medical needs, for example for eating and drinking using plastic straws.

18. We will produce full guidance to accompany the final regulations which will explain the scope of the regulations and provide additional detail on how the regulations are to be implemented.

The Regulations

19. The Regulations ban the supply, in the course of business, and the manufacture of:

• single-use plastic expanded polystyrene beverage cups
• single-use plastic expanded polystyrene beverage containers
• single-use plastic expanded polystyrene food containers
• single-use plastic cutlery
• single-use plastic plates (including trays and platters)
• single-use plastic beverage stirrers
• all oxo-degradable plastic products.

20. The Regulations ban the supply, in the course of a business, to an end user of:

• single-use plastic straws
• single-use plastic balloon sticks.

21. A person who commits an offence of supplying or manufacturing such products is liable on summary conviction for a fine of up to level 5 on the standard scale (£5,000).

22. For products to which exemptions apply (single-use plastic straws and single-use plastic balloon sticks), the manufacture of the items is not banned, and it is only supply to the end-user which is an offence. This is to enable there to be a “supply chain” to ensure products are accessible in Scotland.

23. Many people rely on single-use plastic straws to eat and drink independently, and other options such as paper or reusable straws are not always suitable or safe. We have therefore added a number of targeted exemptions to these regulations to ensure that people who need single-use plastic straws to eat and drink independently can continue to access them.

24. For straws the exemptions are:

• Supply by catering establishments and pharmacies (provided certain conditions are complied with, such as the straws being stored out of sight of customers) to ensure there is a supply of straws available for people who need them to eat and drink independently. Where a single-use plastic straw is requested, catering establishments will be still able to provide it to a customer alongside drinks or food at no cost. In a pharmacy, the exemption is in place to allow for single-use plastic straws to be purchased by those that need them, or on behalf of someone that needs them.
• Supply in care homes, prisons, schools, and premises for early learning and childcare, day care or childminding, to ensure there is a supply of straws available for people who need them
• A medical devices and medical purposes exemption to the supply of straws:
  • which are approved medical devices under the Medical Devices Regulations 2002,
  • for use for medical purposes by or under the direction of a health professional, or
  • by a health professional for medical purposes.
• Supply of straws that are packaging (on the basis that straws can be used to package granular medicines).

25. Furthermore, the Scottish Government will work with stakeholders, including representatives of equalities groups, to ensure that the exemption relating to single-use plastic straws is implemented in a way that respects equality interests and the dignity of those needing to access single-use plastic straws. This will be represented in the guidance that accompanies the final regulations, in addition to specific communications when the regulations come into force.

26. For balloon sticks, exemptions are in relation to supply of sticks for attaching to balloons which have industrial or other professional uses, such as for weather balloons, in line with the requirements of the SUP Directive.

27. Transitional provisions are included in the draft regulations, lasting 3 months, which allows existing stock obtained before the coming into force of the regulations to be supplied for a 3 month period after the coming into force date.

Questions

Question 1

Do you have any comments you would like to make regarding the scope of the provisions proposed in these draft regulations?

Question 2

Do you have any comments you would like to make regarding the scope of the exemptions to provisions proposed in these draft regulations?

Question 3

Do you have any other comments on the draft regulations that you would like to make?

Access and respond online at https://consult.gov.scot/environment-forestry/draft-environmental-protection-single-use-plastic/.

If you have any questions about this exercise, please send them to SUPD@gov.scot