Packaging law in gastronomy

Packaging law in gastronomy

The packaging law in gastronomy

Registration obligation, system obligation, data reporting obligation, central office?? We dissolve!

Businesses produce goods, package them in whatever way they see fit and beneficial. Traders sell these goods - and give the customer a practical plastic bag to take with them. At the end consumer, the packaging ends up in the rubbish, is disposed of by municipal rubbish collection and then incinerated or stored in landfills. That used to be normal, but hasn't been the case in Germany since the early 1990s.

In 1991, faced with environmental pollution, excessive amounts of municipal waste and the beginning shortage of resources, the federal government intervened in packaging matters for the first time. Thirty years and several amendments to the law later, the Packaging Act now regulates who is responsible for the disposal of packaging waste in Germany (i.e. the manufacturers of the packaged products themselves), in what form this has to be done and in some cases even what goods are packaged in Germany and how may. We owe the German packaging legislation the green dot, mandatory deposit and quotas for reusable beverages, the ban on plastic bags and the ban on various disposable plastic items, including straws and plastic cutlery, which has been in force since July 2021.

The packaging law also affects restaurants, delivery services and caterers. Every restaurateur who uses so-called service packaging - this is all packaging in the take-away area - has to deal with the legal requirements. Time to take a closer look at the relevant regulations!


1. Right from the start: German packaging legislation

1.1 1991 – The Packaging Ordinance turns waste into valuable materials

The Packaging Ordinance, which has been in force since 1991, was the first German set of rules that made the industry responsible for the disposal of sales packaging - until then, waste disposal was exclusively in the hands of the municipalities.

For goods whose packaging typically accumulates as waste at private end consumers, the packaging ordinance obliges manufacturers to guarantee free packaging take-back across the board and to send certain proportions of material recycling that have increased several times since then. Since then, private companies have been organizing the collection and recycling of sales packaging on behalf of the German consumer goods, packaging and retail sectors. At first, this happened exclusively under the sign of the green dot, symbol of Duales System Deutschland GmbH . The term "dual system" referred to the now "two-track" - municipal and private - waste disposal system in the Federal Republic.

Duales System Deutschland GmbH held the monopoly on private-sector waste disposal for more than ten years. Since the DSD monopoly was lifted in 2003, there have been a number of other, somewhat less well-known providers on the market. All disposal systems are financed by the so-called license fees of the manufacturers who are legally obliged to participate in at least one system: Depending on the type and quantity of packaging materials placed on the market, fees have to be paid for the use of the disposal systems.


1.2 2019 – The Packaging Act expands the dual system and centralizes its administration

On January 1, 2019, the Packaging Act - VerpackG for short - replaced the Packaging Ordinance that had been in force until then. In many respects, the new law simply tied in with the provisions of the Packaging Ordinance; the existing dual system was expanded in various ways: Among other things, mail order companies were made responsible for the shipping packaging they placed on the market for the first time.

A drastic innovation was the creation of a central office for market surveillance; this put an end to the coexistence of different databases. The Central Packaging Register Foundation is a quasi-authority subordinate to the Federal Environment Agency, with which all so-called first-time distributors of sales packaging have had to register since 2019. There is also an obligation to report data: All data, including information on the type of material and the mass of the packaging placed on the market, which has been reported to operators of dual systems must also be brought to the attention of the central office. From now on, the central office is also the single addressee for the annual reports from manufacturers on the total packaging quantity - the so-called declaration of completeness.


1.3 Legislative changes 2021 - first plastic bans & reusable in the catering trade

In 2021, changes to the Packaging Act came into force with some additions that are also important for the catering trade.

• Since July 2021, a number of single-use plastic products have been banned from being placed on the market. These include plastic cutlery, plates, straws and stirrers, and Styrofoam containers for drinks and takeaway food.
• From January 2022, plastic carrier bags with material thicknesses between 15 and 50 microns will be banned. (This specification exempts the thin knotted bags for fruit and vegetables from the ban, as well as the thicker reusable carrier bags, usually made of woven plastic.)
• From 2023, restaurants, caterers and delivery services that use single-use plastic containers for food and drinks will be obliged to offer reusable solutions as an alternative.

2. What specific obligations arise for catering establishments from the Packaging Act?

As the operator of a gastronomic establishment, the law in its current version from July 2021 is relevant for you in the following cases:

1. You give food and drinks to your customers also or exclusively in so-called service packaging (e.g. bowls, menu boxes and drinks cups - all disposable) - for example as part of deliveries, as take-away or to take away unused food.
2. You produce foodstuffs such as wine, spirits, beer, juice, preserves, condiments, sausage or the like yourself (or have them produced on your behalf by third parties), which you sell to your guests in bottles, jars or cans under your own brand .

In both cases, according to the Packaging Act, you are considered the "manufacturer" of the packaging products used - you actually purchased them from a supplier, but you are the one who fills them for the first time for delivery to the end consumer.

This means that you are obliged to register in the LUCID register of the Central Packaging Register Office : You must register there with your name, address, contact details and tax number.

If you sell packaged products under your own brand, you also have the licensing obligation (also called system obligation) for this sales packaging: You must conclude a license agreement with one or more system operators for the packaging quantities used by your company or the contract manufacturers acting on your behalf and prove this to the central office. Even if you only work on a small scale: There is no trivial limit! (As a restaurateur, on the other hand, you will probably be spared the annual declaration of completeness: it is only required if a manufacturer puts more than 80 tons of glass / more than 50 tons of paper or cardboard / more than 30 tons of plastic or other materials in the form of sales packaging into circulation per year brings.)

If you only use service packaging, you have the option of obtaining pre-licensed packaging from your supplier - the Packaging Act stipulates that you can expressly request the seller of the service packaging you use to take care of the licensing. (However, they will then pass the costs incurred on to you - it may therefore be cheaper under certain circumstances to take care of the licensing yourself.) If you only use pre-licensed service packaging, there is no further licensing requirement for your company. However, you must inform the central office who you have commissioned with the licensing and be able to submit corresponding proof. Invoices, delivery notes, contractual agreements or other documentary evidence issued by the packaging seller are suitable for this.


2.1 What exactly does the law say about reusable items in gastronomy?

From January 2023, the Packaging Act will oblige all catering establishments that use single-use beverage cups and/or single-use plastic service packaging to alternatively offer their customers a reusable option for the goods delivered in this single-use packaging. Smaller businesses are exempt from this, however: If you have fewer than five employees and sell on less than 80 square meters, you are only obliged to fill the goods offered in disposable service packaging into reusable containers brought by the customer, if desired. Classic takeaways therefore do not have to offer reusable tableware; Fast food chains, caterers, delivery services and large restaurants may have.

In newspaper articles and blogs, the forthcoming reusable obligation is often interpreted as being very comprehensive. Strictly speaking, however, the law only mentions plastic service packaging in connection with the obligation to provide a reusable option. Accordingly, the reusable obligation should not apply to take-away, which is offered in service packaging made of cardboard, bamboo or palm leaves, for example. It is therefore conceivable that the reusable obligation could result less in an expansion of the reusable range than in a shift towards packaging products made from natural materials that have not been chemically modified.


2.2 Summary of your current obligations under the Packaging Act – as of 2021

You use service packaging:

1. You have to register with your master data in the LUCID register of the Central Packaging Register Office .
2. You have to prove there that the service packaging you use is already pre-licensed OR you have to conclude a license agreement for the service packaging you have put into circulation with a system operator and prove this to the central office.
3. If you have concluded a license agreement yourself for the service packaging you use, you are also responsible for data reporting: Whenever you report packaging quantities to “your” system that you will or have placed on the market, you must submit an identical report also submit it to the central office.
4. From January 2023, larger catering establishments and chains must also offer reusable alternatives for disposable service packaging made of plastic or with plastic content. However, a less complex strategy would then be to switch to plastic-free service packaging.

You use other sales packaging that is not service packaging (e.g. bottles, screw-top jars, cans) for goods sold under your brand name:

1. You have to register with your master data in the LUCID register of the Central Packaging Register Office
2. You must conclude a license agreement with a system operator for the sales packaging you have placed on the market and prove this to the central office.
3. You have the obligation to report data: You must report to the central office everything that you report to "your" system operator. Specifically, these are the planned quantities and then, in the annual review, the actual quantities of packaging placed on the market. When and how often these quantity reports have to be made varies from system to system. The following applies: Every time you report something to your system operator, you must also submit the identical report to LUCID.

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Frequently asked questions about the regulations of the Packaging Act for the catering trade

What packaging falls within the scope of the law?

In principle, all so-called sales packaging is subject to the system – this is packaging that typically occurs in the private end consumer's home or, as the law puts it, in "comparable sources" (e.g. in restaurants, in cultural and leisure facilities) as waste. In addition to the sales packaging for goods purchased in stationary retail, this also includes shipping packaging and service packaging. All of this packaging must be licensed from a system operator of the dual system.

The licensing requirement does not apply to returnable bottles and other disposable and reusable packaging that is subject to a deposit.


What is service packaging?

Service packaging is the mostly manually filled packaging in which goods are packed in retail and catering for handover to the end consumer. These include bakery bags and knot bags for fruit and vegetables, sausage and cheese wrapping paper, beverage cups and bowls of all kinds for take-away meals, but also flower paper or the foils in which dry cleaners pack clean laundry.

Service packaging has a special status in that it – and only it – can also be purchased pre-licensed.


What is pre-licensed packaging?

Pre-licensed packaging is service packaging that the manufacturer/supplier of the packaging has already licensed from a system operator of the dual system. The resulting costs are passed on to the purchaser of the packaging. For pre-licensed service packaging, a catering business no longer has to conclude a license agreement itself.


Does the licensing obligation also apply to bioplastics and other packaging made from renewable raw materials?

Yes. Sustainable sales and service packaging must also be licensed, no matter what material it is made of. In addition, the Packaging Act does not differentiate between petroleum-based and bioplastics - there are no special regulations for bioplastics.

However, the legislature urges the operators of disposal systems to take ecological criteria into account when setting their license fees, for example to charge lower fees for recycled plastic and other sustainable materials. However, the specific measures in this regard are left to the system operators.


What is the Central Packaging Register Office?

The Central Packaging Register Office (in short: Central Office) is a quasi-authority based in Osnabrück, which has been monitoring compliance with the provisions of the Packaging Act on behalf of the Federal Environment Ministry since 2019.

The Central Office operates LUCID, a database in which all distributors of sales packaging must register and to which they must regularly report data on the packaging placed on the market. Registration data in LUCID can be viewed publicly.


Do catering establishments also have to register with the Central Office?

Catering establishments must register if they a) use service packaging and/or b) sell goods in non-service packaging under their own brand. The latter would apply, for example, to a snack bar that sells its own brand of ketchup in bottles.


Do catering establishments have to report data to the Central Office?

If a catering business obtains pre-licensed service packaging, it only has to prove this to the central office, further data reports are not required.

If, on the other hand, he takes care of the licensing of the service packaging he uses himself or if he uses sales packaging that is subject to system participation that is not service packaging, he must also bring all the data that he reports to his system operator to the attention of the central office.


Are there de minimis limits for the licensing requirement?

No. Sales packaging is subject to system participation regardless of the quantity supplied.


Where can I find an overview of all operators of dual systems?

The Central Office provides an overview of all system operators on its website.


What are the penalties for violations of the Packaging Act?

Anyone who places unlicensed packaging on the market must expect a fine of up to 200,000 euros. Failure to register with the Central Office can result in a fine of up to EUR 100,000 and failure to report data can result in fines of up to EUR 10,000.

Since the registration data of the LUCID database are publicly available, failure to register a company or the brands it sells in accordance with the law can also lead to a warning from a competitor under competition law.



Sources
https://www.verpackungsgesetz.com/gesetzestexte/verpackg/
https://www.buzer.de/gesetz/14454/index.htm
https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&start=//*%5b@attr_id=%27bgbl121s1699.pdf%27%5d#__bgbl__%2F%2F*%5B%40attr_id% 3D%27bgbl121s1699.pdf%27%5D__1633894696821
https://de.wikipedia.org/wiki/Packaging Ordinance_(Germany)
https://de.wikipedia.org/wiki/Duales_System_(waste management)
https://www.bundestag.de/resource/blob/543812/e1f20553870a923ce83b9a4b174f4a4a/wd-8-051-17-pdf-data.pdf
https://www.dehoga-bayern.de/fileadmin/USERFILES/Aktuelles/Termine/DEHOGA-Merkblatt_-_Das_neue_Verpackungsgesetz.pdf
https://www.umweltbundesamt.de/themen/aenderungen-im-verpackungsgesetz-ab-juli-2021
https://www.bundesregierung.de/breg-de/themen/klimaschutz/mehrweg-fuers-essen-to-go-1840830
https://www.packagingregister.org/fileadmin/files/Themenpapiere/Themenpapier_How-To-Guide.pdf
https://www.umweltbundesamt.de/biobasis-biologische-degradable-plastics#38-where-should-ten-packaging-made-of-biologically-degradable-plastics-be-disposed-of-disposal