Background
The introduction of the erstwhile Plastic Waste (Management and Handling) Rules, 2011 (‘PWMH Rules, 2011’) marks the first attempt of the government to address the plastic pollution crisis resulting from the unbridled use of plastic packaging in the Indian consumer market. The PWMH Rules, 2011 were aimed at improving the municipal plastic waste management systems requiring municipal authorities to cooperate with local waste pickers for effective collection of plastic waste. Further, the PWMH Rules, 2011 imposed a ban on the use of plastic sachets for storing, packing, or selling tobacco and pan masala besides providing for Extended Producer’s Responsibility (‘EPR’) mechanism applicable to manufacturers to the extent of setting up plastic waste collection centres either individually or in collaboration with municipal authorities. However, the lack of detailed provisions for implementation of the limited EPR framework resulted in inefficacy of the PWMH Rules, 2011.
The launch of the Swachh Bharat Abhiyan also termed as the ‘Clean India Mission’, in the year 2014, paved the way for the introduction of the Plastic Waste Management Rules, 2016 (‘PWM Rules, 2016’) in supersession of the PWMH Rules, 2011. The new rules have been hailed by environmental activists as a historic piece of legislation as they lay down a more comprehensive EPR mechanism. The applicability of the PWM Rules, 2016 has been extended to rural areas to ensure adoption of constructive waste management practices at the grassroots level. Some of the other notable provisions introduced under the new rules, inter-alia, include ensuring segregation at the source by obligating waste generators to sort the waste generated by them at their facilities and handover the said segregated waste to authorized waste processing or disposal facilities and specifying methodologies for reuse and recycling of plastic waste at waste-to-energy and waste-to-oil plants besides being reused for road construction.
The EPR mechanism which finds its origins in the ‘polluter-pays’ principle central to environment law required producers, importers and brand-owners dealing with plastic carry bags, multi-layered plastic pouches, or plastic packaging to establish effective modalities for collecting back plastic waste generated due to introduction of products in the Indian market by the aforesaid entities. Further, producers, brand-owners and importers were required to pay a certain amount as plastic waste management fee through pre-registration in terms of the EPR provisions. The insertion of Guidelines on EPR for Plastic Packaging (‘EPR Guidelines’)[1] under Schedule II of the PWM Rules, 2016 in February 2022 together with the introduction of ban on certain specified single-use plastic items effective from 1 July 2022, have been some of the crucial amendments to the PWM Rules, 2016. The said amendments were aimed at strengthening implementation of EPR mechanism to ensure increased accountability of producers, importers and brand-owners vis-à-vis plastic waste generated due to their business activities and curbing pollution caused by littered plastic waste.
On 30 October 2023, the Plastic Waste Management (Second Amendment) Rules, 2023 (‘PWM Second Amendment Rules, 2023’)[2] were notified by the Ministry of Environment, Forests and Climate Change (‘MoEFCC’) in the official gazette. The aforesaid amendment rules are aimed at alleviating issues related to implementation of PWM Rules, 2016 and EPR Guidelines that have been faced by industries engaged in the business of manufacturing plastic packaging or those using the same for packaging their products. This article briefly analyses the significant changes brought about by the PWM Second Amendment Rules, 2023 to the plastic waste management framework in comparison to the erstwhile provisions.
Much-awaited clarity vis-à-vis applicability of EPR Guidelines on export products
The sub-rule 3 of Rule 2 inserted vide the PWM Second Amendment Rules, 2023 resolves the ambiguous question as to the applicability of EPR Guidelines in respect of plastic packaging to be exported by Indian manufacturers as well as plastic packaging used for packaging export products.
Following the amendment, inter-alia, all producers, importers and brand-owners dealing with plastic packaging meant for (i) export and (ii) wrapping and packaging products designated for export against an order for export received by the aforesaid entities in India, are exempt from fulfilling EPR obligations under EPR Guidelines. Exception from this exemption has been carved out for pre-consumer plastic packaging waste generated by such units during packaging export products.
Term ‘producer’ redefined
Prior to the amendment, the definition of the term ‘producer’ was broad and inclusive. As per the erstwhile definition manufacturers and importers of carry bags or multilayered packaging or plastic sheets or like and industries or individuals using plastic sheets or like or covers made of plastic sheets or multilayered packaging for packaging their products were covered within the ambit of the term ‘producer’ and were required to undertake strict compliances in terms of the EPR Guidelines.
This gave rise to cases where certain entities were required to register both as a producer and importer in respect of imported plastic packaging being used for packaging products for sale. However, it is neither practical nor feasible for such entities to fulfil EPR targets in dual capacity as it will lead to accounting for the same quantity of plastic packaging twice. Accordingly, in such cases, there was ambiguity as to whether such entities were required to fulfill EPR targets only in one capacity i.e., either as an importer or as a producer, or in dual capacity.
The amended Rule 3(s) of the PWM Rules, 2016 defines ‘producer’ to mean persons engaged in manufacture of plastic packaging. This has resulted in narrowing down the scope of the said term in comparison to the erstwhile definition. Now only entities that are involved in the production of plastic packaging by using plastic raw materials in the form of resins and pellets procured from manufacturers, are considered producers for the purpose of EPR Guidelines.
Removal of discrepancy in interpretation of marking and labelling obligations under Rule 11
The revised Rule 11 mandates marking and labelling requirements in respect of plastic packaging with minor variations for each type of plastic packaging besides stipulating different dates for compliance with Rule 11 for each type of plastic packaging. As per the modified Rule 11:
- name and registration certificate of the producer or importer or brand-owner generated through the online centralized portal developed by Central Pollution Control Board (‘CPCB’)[3] along with thickness; or
- name and number of certificate issued by CPCB in respect of compostable and biodegradable plastics under Rule 4(1)(h) of PWM Rules, 2016,
shall be printed on different types of plastic packaging in English as specified under the rule.
Rule 11 specifies that marking and labelling requirements with respect to rigid plastic packaging shall be fulfilled with effect from 1 July 2024, whereas in respect of plastic sheet or like and plastic packaging, carry bags and commodities made of compostable plastic, the labelling requirements shall be fulfilled with effect from 1 January 2025.
It is pertinent to note that the PWM Second Amendment Rules, 2023 do not provide any clarity as to the specific date for compliance with the marking and labelling requirements under Rule 11 in respect of (i) single layer flexible plastic packaging, carry bags, plastic sheets and covers made of plastic sheet and (ii) biodegradable plastic packaging and commodities.
Prior to the amendment, Rule 11(1)(a) required each plastic carry bag and plastic packaging to have the name and registration number of the producer or brand owner along with the thickness printed in English. Proviso to Rule 11(1)(a) provided for exemption from the said labelling requirements, inter-alia, to (i) plastic packaging used for imported goods and (ii) rigid plastic packaging.
Further, the erstwhile Rule 11(1)(d) of PWM Rules, 2016 required the importers or brand-owners of imported plastic packaging, alone or along with the products to comply with Rule 11(1)(a).
There were two possible yet contradictory interpretations of the marking and labelling requirements under Rule 11(1)(a) read with Rule 11(1)(d) when it came to plastic packaging used for imported products. On a conjoint reading of Rule 11(1)(a) with Rule 11(1)(d), one interpretation was that the importers of plastic packaging along with imported products, are required to ensure compliance with Rule 11(1)(a). The other possible interpretation was that in respect of plastic packaging used for the imported goods, importers can get the benefit of the exemption as stipulated in the proviso to Rule 11(1)(a) and hence, are not required to comply with the labelling requirements under Rule 11(1)(a) of PWM Rules, 2016.
The amended Rule 11 simplifies the provisions relating to marking and labelling requirements for plastic packaging which will largely allay the regulatory challenges being faced by industry players stemming from the contradictory approaches to interpretation of Rule 11. At the same time, the amendment made the labelling requirements in respect of rigid plastic packaging mandatory with effect from July 2024 as opposed to the exemption that was available prior to the enactment of the PWM Second Amendment Rules, 2023.
Conclusion
The amendments introduced vide the PWM Second Amendment Rules, 2023 represent the Central Government’s acknowledgement of the gaps in the regulatory framework for plastic waste management. The introduction of the amended rules is the right step towards easing regulatory and implementation-oriented concerns of both, the entities obligated under the EPR Guidelines and the regulatory agencies responsible for enforcement of the PWM Rules, 2016. The duplicity of accounting for plastic packaging waste generated by entities as a producer and an importer during calculation of EPR targets under EPR Guidelines has been done away with following clear distinction being drawn between producers and importers under the revised PWM Rules. 2016. Further, the amendments provide much needed clarity as to the ambiguity relating to applicability of EPR Guidelines to export products. They also help eliminate conflicting interpretations of labelling requirements under Rule 11 putting an end to series of individual representations being made by various industry bodies to the CPCB in that respect.
[The authors are Associate Partner, Principal Associate and Associate, respectively, in Corporate and M&A practice of Lakshmikumaran & Sridharan Attorneys, New Delhi]
[1] https://egazette.gov.in/(S(snztkpt30shew1gahuyge0vn))/ViewPDF.aspx
[2] https://egazette.gov.in/(S(snztkpt30shew1gahuyge0vn))/ViewPDF.aspx
[3] The online centralized portal developed by CPCB which became operational from April 2022 can be accessed at: https://eprplastic.cpcb.gov.in/#/plastic/home
