‘Tethering’ Obligations and the Deposit Return Scheme Takes Off

Ireland's legislative strategy for a circular economy includes key measures like the Deposit Return Scheme and the upcoming single-use plastic cap/lid tethering obligations. Our ESG team reviews the impact of these measures.

The Circular Economy Act 2022 was signed into law in August 2022. It places the Government’s circular economy strategy and Waste Action Plan for a Circular Economy on a statutory footing. Both policies are intended to give effect to the EU’s circular economy action plan. Some of the initiatives under this package of measures by the Irish Government have now been put in place, with others due to come into force soon.

There is an upcoming deadline this summer as the cap/lid ‘tethering’ obligations kick in from 3 July 2024. In addition, there are further duties on the horizon.

The Deposit Return Scheme has recently launched, with producers, retailers, consumers and the newly established Re-turn, the administrative body for the Scheme, now navigating the initial teething problems.

Single-use plastics and cap/lid ‘tethering’

The Government gave effect to the EU’s Single Use Plastics Directive[1] by the introduction of the Single Use Plastics Regulations[2] (SUP Regulations) in 2021.

The SUP Regulations take a phased approach to the introduction of obligations. The next one on the agenda is the introduction of the cap/lid tethering obligations.

From 3 July 2024, all single use plastic beverage containers sold in Ireland for the first time that have a capacity of up to three litres and a cap or lid, must be manufactured so that the cap or lid remains attached to the container during the container’s intended use stage.

This obligation applies to all “producers” that place such products on the market in Ireland for the first time which may include manufacturers, sellers and importers.

Glass or metal containers are excluded, even where they have caps and lids made from plastic. There is a similar exemption available for containers of food in liquid form that is used for special medical purposes. It is also important to note that the obligation applies only to beverage containers and not to beverage cups. Cups and containers are treated as different product categories for the purpose of the SUP regime. The European Commission guidance[3] explains that one of the key elements for distinguishing between these is their shape.

Failure to comply with the tethering obligation is an offence. Persons who commit such an offence may be liable for a fine and/or imprisonment. This is the case for many of the obligations in the SUP Regulations.

Deposit Return Scheme

The Deposit Return Scheme (DRS) was launched on 1 February 2024 by the DRS Regulations 2024[4]^.. The DRS requires producers and retailers of PET beverage bottles and aluminium or steel beverage containers with a capacity between 150ml – 3 litres to charge a levy to purchasers. This levy is returned to the customers upon return of the products to a recycling facility. Producers and retailers must also register with Re-turn. They must also comply with other obligations to ensure customers are aware of the scheme such as product labelling, itemising deposits, and the take-back options.

There are some exemptions available to retailers:

• An automatic exemption from the scheme for retailers where the product is intended to be consumed on the premises
• Exemptions from the need to provide take-back options, subject to the approval of Re-turn, are for:
  • Retail stores 250m² or less in size
  • Purchases made online or through a vending machine
  • Products sold by a hotel, restaurant, pub or similar premises where food and drink is consumed

The availability of functioning deposit return facilities and the application of the exemptions seems to be giving rise to some initial teething problems within the DRS. This is particularly the case in hotel/restaurant settings where the premises can elect whether or not to charge the deposit depending on whether they are predominantly catering for onsite or offsite consumption. If the deposit is charged, then the container should be provided to the purchaser. This applies even where they consumed the beverage on the premises so that the customer, rather than the hotel/restaurant, collects the deposit[5] .

What else is on the horizon?

The transition to a truly circular economy represents a huge change. The legal framework supporting this transition is constantly evolving, and there are many more circular economy measures on the horizon, including:

• Minimum targets for recycled content of certain single use plastic bottles, where the main component is PET, of 25% by 1 January 2025. This is calculated as an average for all PET bottles placed on the market in Ireland. This will increase to 30% by 1 January 2030 under the SUP Regulations
• Due diligence obligations on certain coffee, cocoa, soya, cattle, oil palm, rubber, and wood products to ensure they are ‘deforestation free’ and comply with certain legislation. These obligations are due to come into effect from 30 December 2024. For more information, see our previous article.
• A proposed Regulation on Packaging and Packaging Waste is being considered at EU level. This legislation would impose additional sustainability requirements for packaging, such as recyclability, reusability and compostability targets

Conclusion

The introduction of the Deposit Return Scheme and the single use plastic cap/lid ‘tethering’ obligations are the most recent measures in Ireland’s drive to establish a circular economy. However, there are more on the horizon.

All retailers, hotel/restaurant/bar operators, producers and manufacturers will need to familiarise themselves with the existing and future obligations. In particular, it is time to ensure that you’re ready to comply with the cap/lid ‘tethering’ obligations kicking in from 3 July 2024.

For more information, please contact a member of our Planning & Environment team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Directive (EU) 2019/904

[2] SI 516/2021 - European Union (Single Use Plastics) (No2) Regulations 2021

[3] Commission guidelines (2021/C 216/01) on single-use plastic products in accordance with Directive (EU) 2019/904

[4] SI No 33/2024 - Separate Collection Deposit Return Scheme Regulations 2024

[5] Re-turn Hospitality Summary Information Guide