Consultation on introduction of market restrictions on certain single-use plastics in Scotland

The market restrictions
The scope of the restrictions
Other considerations

The Scottish Government has launched a public consultation on the introduction of market restrictions on certain single-use plastic items in Scotland. Responses to the consultation must be submitted before the closing date of 4 January 2021. The proposed market restrictions on single-use plastics follow and may extend beyond the provisions in Article 5 of the EU Single-Use Plastics Directive 2019/904 (the "SUP Directive").

The market restrictions

Under proposed regulations coming into force in 2021, the supply of certain items in Scotland would be prohibited, irrespective of whether there is a charge for those items. The supply restriction is intended to cover all channels of distribution, whether physical or online.

The scope of the restrictions

The proposed market restrictions are intended to cover particular single-use plastics and all oxo-degradable plastic products as identified in Article 5 of the SUP Directive. Given that a market restriction has already been implemented in Scotland in respect of plastic-stemmed cotton buds, this consultation covers the following products:

1. Single-use plastic cutlery

To include individually-wrapped single-use plastic cutlery, mini tasting forks and spoons, combined 'sporks' and single-use cutlery made partly or fully from bio-based plastic. However, non-plastic cutlery with plastic liners/coatings, plastic multi-serve cutlery, non-plastic durable cutlery and rigid plastic cutlery designed for multiple uses will fall outside the scope of the restrictions.

2. Single-use plastic plates

For the purposes of these proposals, trays and platters for service purposes and bowls will also be treated as plates. The market restrictions are intended to catch, among other things, single-use plastic plates made of expanded polystyrene and those with plastic or 'biodegradable' lining. It is not, however, intended to catch non-plastic or plastic reusable plates.

3. Single-use plastic straws

The restrictions would include non-plastic straws with plastic or biodegradable liners/coatings, but would exclude plastic straws provided for medical use and to support independent living, non-plastic straws without plastic liners, non-plastic durable straws and rigid plastic straws designed for multiple uses.

4. Single-use plastic beverage stirrers

The market restrictions will not apply to non-plastic stirrers without plastic liners or coating and non-plastic durable stirrers.

5. Single-use plastic balloon sticks

Reusable plastic balloon sticks, balloon sticks intended for repeated use by professional decorators and plastic balloon sticks to be used for industrial or other professional uses and applications that are not distributed to consumers will be exempt from market restrictions.

6. Single-use plastic food containers made of expanded polystyrene, including their covers, caps and lids

Market restrictions will only apply to food containers (including their caps and lids) made of expanded polystyrene ("EPS") and extruded polystyrene ("XPS") which is considered a subset of EPS.

7. Single-use cups and other beverage containers made of expanded polystyrene, including their covers and lids

The market restrictions will not apply to glass or metal beverage containers that have caps and lids made of plastic or beverage containers intended and used for food for special medical purposes (i.e. in liquid form) and will apply only to cups that are made of EPS and XPS.

8. All products made from oxo-degradable plastics (not just single use)

Oxo-degradable plastics are plastic materials that include additives that, through oxidation, result in the disintegration or chemical decomposition of the plastic material. The proposal is for a total restriction on placing on the Scottish market of these products.

Other considerations

Suppliers who operate across the United Kingdom will be conscious of the layering of regulatory frameworks governing the supply of single-use plastics across Scotland, England, Wales and Northern Ireland. In England, a ban on the supply of specific single-use plastics came into effect on 1 October 2020 (see article on the ban linked here), Scotland already has restrictions on plastic stemmed cotton buds and in Wales, the consultation for a similar piece of legislation finishes on 22 October 2020. Parallel steps have not yet been taken in Northern Ireland but more developments are anticipated including the UK wide proposed plastic packaging tax.

For further information on this topic please contact Olivia Jamison or Paul Sheridan at CMS Cameron McKenna Nabarro Olswang LLP's London office by telephone (+44 20 7367 3000) or email (olivia.jamison@cms-cmno.com or paul.sheridan@cms-cmno.com). Alternatively, please contact Joanna Waddell at CMS Cameron McKenna Nabarro Olswang LLP's Edinburgh office by telephone (+44 131 228 8000) or email (joanna.waddell@cms-cmno.com). The CMS Cameron McKenna Nabarro Olswang LLP website can be accessed at cms.law.

This article has been reproduced in its original format from Lexology – www.Lexology.com.

Article co-authored by Ben Collins.