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Brand owners , manufactures , importers , retailers – beware !
By Garyn Rapson , Paula-Ann Novotny , Nonhlanhla Payne and Amaarah Mayet at Webber Wentzel
On 5 May 2021 the Regulations Regarding Extended Producer Responsibility ( EPR Regs ) came into force under the Waste Act . On the same day , the second round of amendments to the EPR Regs were finally published after extensive consultation with the affected sectors .
The significance of the EPR Regs cannot be understated . These are gamechanging waste management rules which will undoubtedly have a positive impact for the environment , although they will weigh heavily on those impacted .
Webber Wentzel ’ s top tips for the EPR
Regs are :
• They apply to existing and new producers , brand owners and importers of a number of identified products , including :
◦ electrical and electronic equipment ;
◦ certain batteries ;
◦ lighting equipment ; and
◦ paper , packaging and some single use products ( paper , plastic , glass and metal );
• They apply to brand owners who transport or sell their products in primary , secondary or tertiary packaging . Literally anyone who sells anything that is packaged and sold in South Africa ;
• They apply retrospectively to any products placed on the market before 5 May 2021 ;
• They apply to South African companies , international companies who placed products on our market through licensed agents , importers of branded goods and , if all else fails , retailers ;
• Registration is required by all of the above parties by 6 November 2021 ( or within 3 months for any new producers or importers );
• All of the above parties must , by 6 November 2021 :
◦ Establish and implement their own EPR scheme ;
◦ Join another EPR scheme , or appoint a producer responsibility organisation to establish and implement an EPR scheme ;
◦ The entire value chain of the waste produced by the identified products must be considered in the EPR scheme ( collection , storage , transport , reuse , recycling , treatment and disposal );
◦ EPR fees must be paid by the producers to fund the implementation of the EPR schemes , including the full waste lifecycle of the waste produced by the identified products ;
◦ There are onerous auditing , reporting , transformation and other obligations that the producers or PROs must adhere to and achieve through the EPR schemes ; and
◦ Strict mandatory take back , production design , reuse , collection , recycling and / or recovery targets are set to be achieved over a period of 5 years from the date of implementation of the EPR schemes , for the waste produced by the identified products . Careful analysis of these targets is required to understand the full extent of the impact of the EPR Regs on one ' s business .
Webber Wentzel has some reservations as to how effective the EPR Regs will be in the short term – see the recent update : ‘ Over-extension of Extended Producer Responsibility ?’ Despite these reservations , the rules of the waste management game have changed and the impact will be felt by many .
For some , however , these EPR Regs offer immense opportunity . As the saying goes , one person ' s waste is another person ' s treasure .
Webber Wentzel also recently prepared documentation on possible double taxation issues for manufacturers and importers of plastic carrier bags and plastic flat bags ( Doubling Down on Plastic Bag Producers ). In the final amendments to the EPR Regs that came out on 5 May 2021 , this risk has been addressed through expressly excluding plastic carrier bags and plastic flat bags from the ambit of the EPR Regs . This is a welcomed legal development .
Manufacturers and importers of these products must continue to comply with the Plastic Carrier Bags and Plastic Flat Bags Regulations , 2003 published under the Environment Conservation Act , 1989 , as recently amended . CLA
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The regulations of extended producer responsibility under the Waste Act came into effect on 5 May 2021 .
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