The many elements of sustainability: product, packaging, supply chain, and diligence – can everything be achieved?

With the close of COP28 in December, we sum up the key recent legislative and policy developments in the food, packaging, and sustainability world, and with 50 elections around the world in 2024 – consider what the future might hold.

COP28

When discussing climate change, everyone remembers a key figure in the Paris Agreement: "efforts to limit the temperature increase to 1.5% °C above pre-industrial levels(1)" that would be pursued. However, the question was and still remains - how?

With COP28 getting off to a controversial start, due to the COP President Sultan Ahmed Al Jaber being CEO of ADNOC(2), it is somewhat surprising that the UN Climate Press Release said the resulting agreement 'signals "Beginning of the End" of the Fossil Fuel Era"'(3).

The agreement calls on parties to "contribute" to global efforts including "transitioning away from fossil fuels in energy systems...so as to achieve net zero by 2050 in keeping with the science(4)".

By 2030, it also urges parties towards the achievement of "attaining climate-resilient food and agricultural production and supply and distribution of food, as well as increasing sustainable and regenerative production and equitable access to adequate food and nutrition for all(5)."

Yet, as the COP28 President said himself, an agreement is only as good as its implementation(6). The wording of the commitments leaves them open to broad interpretation; parties are to 'contribute' to the transition away from fossil fuels – what counts as contribution? Who has ownership of the result – all 200 parties? Likewise, the move towards climate-resilient, sustainable, and regenerative food and agriculture is equally broad; when will this be deemed 'attained'? By what measure? How much of an increase is sufficient?

Even where targets are specific and measurable, it will always be the case that concrete legislative action cannot please everyone. We look at some of the most recent pressing legislation below.

Deforestation

2024 promises to be a key year for deforestation protections. In parallel to the broad commitments in the COP28 agreement, the UK government announced that there would be new legislation in relation to deforestation due diligence(7). Such legislation already exists in the EU, mandating that traders and operators of certain products made with or fed by certain commodities (cattle, cocoa, coffee, oil palm, rubber, soya, and wood) meet supply chain requirements(8).

The UK government's plan is to introduce deforestation requirement under the existing Schedule 17 Environment Act 2021 - where they have powers to specify forest risk commodities where requirements apply(9). The announcement says these will be non-dairy cattle products: cocoa, palm, and soy. This already marks a divergence from the EU position by not including coffee, rubber and wood, albeit there are UK timber regulations still in place requiring due diligence.

Under the EU regulations, SMEs have reduced duties. Whereas the UK government have said their approach is for organisations with a global turnover of over £50m.

The key EU requirements will apply from 30 December 2024(10), given the UK government plan to lay provisions "when parliamentary time allows." It remains to be seen when the legislation will be in place and in force.

Whatever the end result, this is a good example of the struggles of implementation and why legislation can receive pushback. With diverging regimes in the UK and EU, it remains to be seen how business will manage to comply with differing requirements, where their products cross the border. If this is a struggle at business level, how will the 200 parties in COP28 realistically ensure their climate change commitments work for their own jurisdiction, whilst remaining aligned with the international common goal?

EU Packaging

December has seen key stages in the progress of the EU's Packaging Waste regulation, which will shortly reach the Trilogue process. When it comes to packaging, the key issue of implementation arises again. It is good having a legislative proposal that works in theory, but it needs to work when applied. Great example of which is the postcode lottery of recycling measures across the EU.

When the new regulation on packaging and packaging waste ('2022/0396') was proposed in the EU(11), it made sense that it was a regulation replacing a directive – as it would apply directly to EU Member States and leave less room for diverging applications.

However, on its publication the key question was feasibility and there were evident challenges in implementation. The proposal introduced wide ranging changes: substance requirements, mandatory recyclability, minimum amounts of recycled content, conditions for compostability, packaging minimisation requirements and minimisation of empty space, requirements for reusable packaging, labelling/marking and mandatory deposit return schemes (DRS).

Looking at recyclability as an example, while the objective was clear, the practical route to compliance is unclear. The proposed regulation stated that "all packaging shall be recyclable" and one of the criteria for recyclability was that it would be "effectively and efficiently separately collected". Essentially this means that in order to be recyclable, it must be effectively and efficiently collected, leaving business compliance dependant on each Member State having systems which are not only capable of doing this, but do so successfully.

Since initial publication, there has been significant industry input and criticism about the proposal. UNESDA, after a draft of the proposal leaked, published a statement calling draft reuse requirements "existential threat to beverage industries and effective recycling systems"(12). The key criticism is that the focus on 'reuse' would undo work undertaken on trying to fix recycling systems.

On 18 December 2023, the Council adopted its negotiating position.(13) This general approach sets the scene for the next step – negotiations between European Parliament and the Council to decide the final legislation. Some key amendments include:

Further determination of what is meant by 'recyclability' and the clarification that 'recycled at scale' means the existence of a sufficient capacity for collected packaging waste to be directed to waste streams. The intention is to set out details in delegated acts.
Insertion of definitions on high quality recyclability, home compostable packaging and bio-based plastic.
Additional requirements as to substances within food contact packaging.
Addition of wording that all packaging 'placed on the market' shall be recyclable.
Wording clarifying that minimum percentages of recycled content apply subject to the ability to comply with food safety requirements.
Introduction of a restriction on the use of certain very lightweight plastic bag packaging.

A key area that changed was the reuse targets. Prior to the Council's position being adopted, on 22 November 2023, the European Parliament adopted its position which included a scrapping or reduction of various reuse requirements(14). With bodies like Rethink Plastic already believing the reuse targets should be more ambitious(15), there will be many who are anticipating that the final agreed text between the Parliament and Council will not go far enough. Particularly in relation to plastic, allowing for too many loopholes.

On the other hand, UNESDA raised concerns prior to the Parliament's vote as to the approach to reuse(16). They argue this takes the focus away from recyclable packaging systems, which many companies have spent time and money developing, and that recyclable packaging should be allowed as an alternative to reuse.

It remains to be seen what the Council and Parliament agree. Whatever the outcome, there will be inevitable criticism as parties with different interests want to see their own interests prioritised, with a view their own priorities are the best way to improve the packaging industry's environmental impact.

UK Extended Producer Responsibility

As the UK are no longer required to adopt the EU rules, it seems inevitable that the approach to packaging and packaging recyclability in the UK will differ from that in the EU. This creates a problem currently plaguing other product/safety regimes: the need for businesses to comply with differing regimes, even where the same products cross borders, including within the UK (given the unique position of Northern Ireland).

Since a consultation in March 2022, the UK have been developing an extended producer responsibility scheme with the intention of applying it UK-wide(17). Having consulted on the draft regulations recently, the main feeling in the industry (and legal world) is that, while most see the benefit of a well-designed system, the current proposed regulations are unnecessarily complex, hard for businesses to comply with (currently 136 pages long) and the compliance feasibility is being questioned.

The UK Government have stated a wish to proceed with this quickly. This may partly be due to criticism levied against the current government at the 2023 labour conference, suggesting inaction in the waste industry. Despite the current government being keen to progress, more delays may be inevitable. A recent report by the House of Commons Committee of Public Accounts, noted that significant delays in the government's programme of waste reforms (including EPR) is "because the Department did not set the programme up well from the start"(18).

Even though more ambitions are being set out by the UK, EU and at COP28, few questions remains: will action be taken? Is this feasible? Is there sufficient resource from both a government and business perspective? After all, most agree there is a need for sustainable action, the question is how?