Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021: guidance

B - Key information

2. The European Union's Directive 2019/904 on the reduction of the impact of certain plastic products on the environment (generally referred to as the Single-Use Plastics Directive, or SUPD) was adopted in 2019. Although the UK is no longer a member of the EU, the Scottish Government's aim is to match or exceed the standards set by the Single-Use Plastics Directive.

3. The Regulations implement, in Scotland, measures under Article 5 of the SUPD^[1]. Article 5 requires EU member states to prohibit the placing on the market of specified single-use plastic products. Article 5 also lists single-use plastic cotton buds and oxo-degradable plastic products, which are not included in the Regulations. The Scottish Government has already made the Environmental Protection (Cotton Buds) (Scotland) Regulations 2019, which ban the supply and manufacture of plastic stemmed cotton buds. In relation to oxo-degradable plastic products, the Scottish Government has consulted on banning the supply and manufacture of these products. This is a complex and rapidly changing area and as such the Scottish Government is currently collecting further information before taking a final decision.

4. The Regulations came into force on 1 June 2022, and make it an offence to manufacture and to supply, in the course of business, the following items:

• single-use expanded polystyrene beverage cups including their covers and lids;
• single-use expanded polystyrene beverage containers including their caps and lids;
• single-use expanded polystyrene food containers;
• single-use plastic cutlery including forks, knives, spoons and chopsticks;
• single-use plastic plates; and
• single-use plastic beverage stirrers.

The Regulations also make it an offence to supply in the course of a business:

• single-use plastic straws (where the straws are supplied to an end-user); and
• single-use plastic balloon sticks.

5. Single-use plastic straws and single-use plastic balloon sticks are subject to exemptions, which allow them to be supplied in particular settings and circumstances. Further information about these exemptions can be found in the sections below and on Zero Waste Scotland's website^[2]. Businesses should ensure they have reviewed the implications of this when managing stock levels and to ensure they understand when these items can be used.

6. A person or business who commits an offence under the Regulations is liable on summary conviction for a fine of up to £5,000.

7. This guidance document supports the interpretation of the Regulations. The EU has also produced guidance^[3] on the implementation and interpretation of the SUPD as a whole (the EU SUPD Guidance). The EU SUPD Guidance, whilst relating to the entire SUPD, is relevant to these Regulations in parts. The relevant sections are identified throughout in red. This guidance document takes precedence over the EU SUPD Guidance.

8. The United Kingdom Internal Market Act 2020 (the Internal Market Act) was passed by the UK Parliament, and received Royal Assent on 17 December 2020. The Scottish Parliament withheld consent for the Act. The Act established a market regime for the UK which introduces market access principles for goods in the UK, including the mutual recognition principle for goods. The mutual recognition principle for goods provides that goods which have been produced or imported into one part of the UK, and which can be sold or supplied there without contravening any relevant requirement, can be sold in any other part of the UK, free from any relevant requirements which would otherwise apply.

9. An agreement has been reached with the UK Government, through the Resources and Waste Common Framework, to bring into force an exclusion from the effects of the Internal Market Act for the Regulations. The UK Government will lay regulations at Westminster to amend the Internal Market Act to include this exclusion. The exclusion will come into force following completion of the relevant UK Parliamentary procedures.

10. Until that exclusion comes into force the Regulations and this Guidance will require to be read in light of the application of the Internal Market Act and the prohibition of supply of the listed single-use plastic products in the Regulations will not apply to any products which are produced or first imported into another part of the UK, and which can be lawfully supplied in that part of the UK.

11. The Environmental Protection (Plastic Straws, Cotton Buds and Stirrers) (England) Regulations 2020 prohibit the supply in the course of a business of single-use plastic straws (with exemptions) and plastic drink stirrers in England, which would need to be taken into account in determining which products may be supplied in England.

Once the exclusion from the Internal Market Act is in force, the prohibition of the supply of the listed single-use plastic products in the Regulations will apply to all products, regardless of where they originate from and whether they can be supplied in another part of the UK. The Scottish Government encourages businesses to no longer supply the listed single-use plastic products from 1 June 2022 regardless of the impact of the Internal Market Act.