New obligations for take-away food as of the beginning of the year

In packaging law, both European and national legislators are clearly picking up the pace. The obligation to offer reusable packaging comes into effect on 01 January 2023. Restaurant owners, delivery services, fast-food restaurants, fresh-food counters and other providers of take-away food now need to familiarise themselves with the new provisions of the German Packaging Act [Verpackungsgesetz, VerpackG] if they are to avoid fines.

I. Innovations in the Packaging Act

The amendment of the Packaging Act transposes the requirements of Directive (EU) 2019/904 on the reduction of the impact of specific plastic products on the environment into national law. What does this mean?

• As of 01 January 2023, final distributors of disposable beverage cups and disposable plastic food packaging that are filled with goods at the final distributor are required in each case to also offerthe goods forsale in reusable packaging. The regulations of Secs. 33, 34 VerpackG are intended to help significantly reduce the consumption of packaging material for take-away food and fast-food products.
• Companies may not offer goods in reusable packaging at a higher price or at worse conditions than goods in disposable packaging. However, a deposit may be charged as an incentive for their later return.
• Companies are obliged to inform end consumers at the point of sale by means of clearly visible and legible information boards or signs of the possibility of obtaining the goods in reusable packaging.
• Final distributors must take back reusable packaging that they themselves have put into circulation.

Exceptions to the new obligations

The new Packaging Act provides for exceptions from this for small businesses with no more than five employees in totaland a sales area of no more than 80 square metres, such as snack bars,and for distribution through vending machines.

Furthermore, the obligation to offer reusable packaging does not apply to packaging that has been filled with goods and delivered by a third party. For example, if a supermarket offers pre-packaged and delivered salad or sushi boxes from a supplier, it does not have to provide reusable packaging.

Special case: pre-packaging in central kitchens

The question of whether this exception also applies in cases where the goods are not prepared and packaged by an independent supplier but, for example, by a central kitchen that belongs to the company but is geographically separate, has not yet been clarified and has received inconsistent answers from the authorities.

Speaking against the obligation to offer reusable packaging here is the fact that the place of packaging and the place where the foodstuffs are brought onto the market are different - just as in the case of packaging and delivery by an independent supplier. No packaging of the meals takes place at the points of sale. Insofar, there is no practical difference from the case where a retailer purchases pre-packaged food products from a third party and the third party delivers the products to the retailer's point of sale.

Although the delivering entity in each of these two constellations are different legal entities, the affiliation to a single or to different legal entities cannot matter, since this is irrelevant for the actual objective of avoiding waste.

Violations may result in fines

In the event of a deliberate violation of the obligation to offer reusable packaging, the obligation to treat reusable packaging equally or the obligation to indicate reusable packaging, a fine ofup to 10,000 euros may be imposed. A negligent violation carries a possible fine of up to 5,000 euros.

II.         What should now be done?

Companies should immediately examine whether they want to implement the obligation to offer reusable packaging by participating in a deposit system (e.g. Recub, Vytal, etc.) or by introducing their own solution. Retailers who purchase pre-packaged take-away foods from geographically separate central kitchens should contact the appropriate authorities to coordinate possible exemptions from the requirement to offer reusable packaging. Until the legal situation is finally clarified in this respect, retailers otherwise face the risk of fines.

When giving out disposable plastic products, the requirements of the German Disposable Plastic Prohibition Ordinance [Einwegkunststoffverbotsverordnung, EWKVerbotsV] must be observed. Products such as cutlery, plates and drinking straws made of plasticmay no longerbe put into circulation. Here as well, violations carry the risk of fines.

III.        Outlook

In addition to the regulations on reusable packaging that will apply from 01 January 2023, companies should also keep an eye on the further legislative developments in packaging law:

• For example, with Sec. 30a VerpackG the legislator has created a mandatory requirement for manufacturers of single-use plastic beverage bottles as of 01 January 2025. According to this, such bottles must contain a minimum proportion of plastic recyclates.
• The German Ordinance on the Composition and Labelling of Specific Single-Use Plastic Products [Verordnung über die Beschaffenheit und Kennzeichnung von bestimmten Einwegkunststoffprodukten, EWKKennzV] will make it mandatory for single-use plastic beverage containers to be firmly attached to their lids and caps starting 03 July 2024.
• In addition, the coalition agreement provides an outlook on the envisaged plans of the German government with regard to packaging and single-use plastic products: digital product passports, mandatory recycling labels, an increase in the proportion of recyclates, and resource-conserving and recycling-friendly packaging design are just a few of the coalition's corresponding regulatory plans.

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