Navigating the legal landscape of plastics – balancing utility with environmental responsibility

The theme of Earth Day 2024 is ‘Planet vs. Plastics’. We currently stand at a crossroads between the undeniable benefits and the increasing environmental challenges of unrecycled plastic use.

Single-use, non-biodegradable plastics have woven themselves into the fabric of modern life, praised for their efficiency, safety, and versatility. Yet, the shadow they cast on our planet’s health is growing darker. 

The plastic dilemma

Reports from both British Petroleum and McKinsey & Company highlight the complexities of replacing plastics without increasing our carbon footprint and highlight the lack of suitable alternatives to plastic on the market. Both reports indicate that a complete ban on single-use plastics could lead to a short-term increase in overall energy consumption and greenhouse gas emissions due to this lack of suitable alternative materials.

As we delve into the plastic dilemma, it becomes clear that the path forward requires a delicate balance between leveraging the advantages of plastics and mitigating their impact on our ecosystems and health.

A use case that’s obvious to any supermarket-goer is food hygiene. Plastic packaging provides a barrier against air, moisture and helps optimise humidity levels, all of which promotes shelf life and food safety. The British Plastics Federation’s 2018 paper recognises the main qualities of plastic packaging, outlining that it’s resource-efficient, safe, hygienic, light weight, secure, versatile, and durable. 

Despite these advantages that have led to plastic’s pervasive presence, from the corner store to our kitchen drawers, its environmental toll is becoming increasingly evident. The convenience of unrecycled plastic comes at a steep price: significant damage to ecosystems, biodiversity, and human health. The lifecycle of plastic, from production to disposal, is fraught with challenges that impact both the health of our planet and ourselves.

Microplastics: tiny Particles, massive problem

Microplastics –  fragments of plastic debris measuring less than five millimetres in length – pose a grave threat to land and marine ecosystems and to human health. They are very persistent and don’t biodegrade; it’s almost impossible to remove them from the environment where they accumulate. 

Some microplastics are designed to be small and can be found in many health and beauty products, such as microbeads; these enter the environment directly, by passing unchanged through waterways and are called primary microplastics. Secondary microplastics are created from the breakdown of larger plastics when they undergo weathering, for example lots of plastic ends up in the ocean, where it’s broken up into smaller particles. 

Policymakers have started to take action to stop microplastic pollution, particularly regarding primary microplastics, for example in 2018, the UK banned the sale of all products containing microbeads. But there’s a long way to go when it comes to establishing policies that tackle the issue of microplastics in the environment.

Since larger, non-biodegradable plastics breaking down is one of the main sources of microplastic releases into the environment, we need to address the abundant use of plastic products and plastic waste. According to Earth Day's organising body, the world saw the creation of over 500 billion plastic bags in 2023 alone – that’s one million bags produced per minute worldwide. It is also estimated that 100 billion plastic beverage containers – an average of 300 per inhabitant - were sold in the United States last year and that 95% of all plastics in the US are not recycled at all.   

Navigating the legal risks of environmental claims

As a result of the scale of the impact that unrecycled plastics have on the environment and the yet unclear risks of plastics on human health, national and supranational legislative bodies, NGOs, and other stakeholders are increasing efforts to address the so-called 'plastic problem'. There’s also a rising tide of environmental awareness amongst consumers. This evolving landscape presents both opportunities and risks for companies who produce or use plastic. 

For instance, fast fashion companies have recently come under scrutiny in the UK for making 'green claims' which do not accurately reflect the quantity of plastic waste they produce. In this complex space, tools like Bird & Bird’s Green Claims Tracker are valuable for companies to review their environmental claims against local laws and ensure they reflect genuine sustainability efforts, steering clear of the legal pitfalls associated with misleading green claims.

For all companies – whether producers of single-use plastics or not – it is crucial to stay informed about global and national initiatives aimed at plastic reduction. Developing a robust, proactive strategy is key – not only to adapt to regulatory changed but also to ensure a future-focused relationship with plastics that prioritises sustainability over dependency. 

Global initiatives and legal frameworks: shaping the future of plastic use

The concerted effort to tackle plastic pollution has resulted in a raft of international cooperation agreements, legislative initiatives, and stakeholder projects. This complex regulatory landscape can prove difficult for businesses to negotiate, so we have outlined below some of the key initiatives. 

The United Nations' 2030 agenda for sustainable development consists of 17 sustainable development goals (SDGs). SDG14 – which is tied to ocean health and marine resources - includes the target of: 

"By 2025, prevent and significantly reduce marine pollution of all kinds, in particular from land-based activities, including marine debris and nutrient pollution."

While SDGs are non-binding 'calls to action' and non-compliance does not pose direct legal risk to businesses, they are a useful compass to guide environmental action. We also see SDGs as sources of both positive and negative publicity, so their impact on investors and consumers should not be underestimated. 

More directly tied to plastic is the UN Environment Programme's (UNEP) resolution for a for a new international agreement on plastic pollution, to be agreed by the end of 2024. At a UN Environment Assembly in March 2022, 175 nations signed a resolution committing to developing an internationally legally binding agreement that addresses the full lifecycle of plastic pollution. 

The UK Government has since joined a 'high ambition coalition' of countries, co-chaired by Norway and Rwanda, to end plastic pollution by 2040. A draft legally binding instrument was circulated for negotiation in November 2023 and is set to be further discussed at the next Intergovernmental Negotiating Committee (INC) session to be held from 23 to 29 April of this year in Canada. 

The exact outcome of this process is yet unknown, but it is sure to result in tougher restrictions on plastic producers and users. Continuing with 'business as usual' for those who rely heavily on unrecycled, single-use plastics is unlikely to prove a fruitful strategy in the medium to long term.  

Not to be outdone, the EU has agreed a Single Use Plastics Directive (Directive (EU) 2019/904). This directive comes as the EU has identified a widening gap between waste and recycling waste. In other words, the EU is producing plastic waste at a greater rate than it can be recycled – and the gap is only increasing. The directive has yet to be transposed into national law by member states, but its scope is now fairly clear. It includes: 

  • a ban on single-use plastics where alternatives exist on the market;
  • measures to reduce consumption of plastic food containers; 
  • extended producer responsibility schemes covering the cost of clean-up of litter tied to products such as tobacco filters and fishing gear; and 
  • an ambitious target for recycling of plastic goods to be reflected in product design requirements. 

It is likely that the so-called 'Brussels Effect' will operate to enhance worldwide regulatory pressure on plastic packaging. 

In a similar vein, the UK's plastic packaging tax charged at a rate of £217.85 per tonne, aims to encourage the use of recycled, rather than new, plastic within plastic packaging. A helpful guidance document was published on 2 January 2024 (accessible here). This tax took effect from 1 April 2022. While it does exclude certain types of plastic packaging, for example those used for human medicines or which contain 30% or more recycled plastic content, businesses should consider whether the cost of maintaining an existing reliance on plastic outweighs the cost of alternatives given the growing regulatory pressure. 

The UK plastic regulatory landscape also includes an extended producer responsibility (primarily under the Environment Act 1995 since reformed under the Environment Act 2021) for plastic producers. Businesses over a certain size which make or use packaging are under a legal obligation to ensure that a proportion of the packaging they place on the market is recovered and recycled. A revised scheme is expected to be introduced from October 2025 wherein the full cost of collecting, sorting, recycling and disposing of household packaging waste will be placed on packaging producers rather than local authorities. The level of fees imposed via this scheme will depend on how easy to recycle the packaging produced is. 

The four initiatives cited above are just a handful of the actions being taken globally to reduce the use of plastic packaging and other single-use plastics. The cost of using and producing unrecycled, non-biodegradable plastic is only increasing, especially as regulators become alive to its harmful effects on marine and land ecosystems and human health. This is why the continued reliance on unrecycled single-use plastics exposes businesses to a myriad of legal risks. 

Legal and business risks in the age of sustainability 

The landscape of plastic use is fraught with risks that extend far beyond legal compliance. Lacking a coherent ‘plastics strategy' now exposes businesses to loss of investor interest, and can lead to reputational and liability issues.  

With investors increasingly wary of stranded assets, they are factoring the regulatory crackdown on non-biodegradable single-use plastics into their investment decisions. Whether through increased and detailed reporting or simply through corporate pledges, investors are looking to guarantee that the companies in which they invest are working to reduce their reliance on single-use plastics. The flipside, of course, is that businesses showing a commitment to reducing plastic reliance and embracing the circular economy stand to benefit from increased investor attention. 

With this increasing pressure from stakeholders and developing legal requirements to shift towards a more sustainable way of operating, businesses need to be able to demonstrate ESG progress and compliance. Bird & Bird’s ESG Navigator tool simplifies the ESG regulatory landscape, allowing you to quickly simplify, identify, assess and address ESG regulations and directives that affect your business.

As previously mentioned, the fashion industry has already felt the sting of this shift. Several 'fast fashion' businesses were the focus of a high-profile Competition and Markets Authority (CMA) greenwashing investigation. This investigation into whether claims regarding the recycled, sustainable, or responsible nature of products was widely publicised in the British media. The CMA and advertising standards agency (ASA) has declared green claims to be a particular focus and are likely to continue investigating businesses that produce plastic products and make claims about their recyclability.

Given that a majority of consumers are willing to pay more for a product with sustainable packaging, it can be tempting for businesses to exaggerate their green credentials. The reputational risks of doing so are not going away any time soon and businesses are better off investing in truly sustainable packaging where possible. 

Lastly, lawsuits against large multinationals' plastic production have been brought in France and the United States. Plastic production and usage have been identified as a lingering liability by global insurance firm Allianz. According to the head of Allianz's environmental impairment liability group, companies must prepare: “Depending on where your company sits on the spectrum of the plastics industry, it could be at risk of claims from human health exposures to chemical additives, environmental damage or human health exposures to [microplastics].” 

While petrochemical industry actors are expected to face the greatest exposure to liability risk, claims against major consumer companies are likely to be brought as well. Businesses reliant on unrecycled plastics must be alive to this risk particularly as the negative health impacts of plastics become clearer. 

Sustainable strategies: proactive measures for plastic reduction

To mitigate risks and transition to more sustainable business practices, there are several steps that businesses can take to limit or reduce their plastic production and consumption. 

Start with the low hanging fruit: Certain plastics such as bubble wrap or polystyrene are notoriously difficult to recycle and have suitable alternatives on the market. 

Scrutinising the supply chain:  A simple way of reducing plastic out is to reduce plastic in. Where suppliers are providing materials with excessive plastic packaging – enquire as to whether they are reducing plastic and what their long-term strategy is. 

Designing for the future: Innovative packaging that prioritises recyclability not only addresses environmental concerns but anticipates regulatory changes. The increased cost of plastic use, especially in the UK and EU, means that the upfront cost of changing packaging can lead to cost savings down the line. This also reduces the risk of attracting unwanted attention from regulators for 'greenwashing' claims. 

Collaboration is key: Joining stakeholder initiatives such as the UK's Plastic Pact, which includes some of the UK’s biggest supermarkets, can help set direction and provide positive examples of businesses eliminating problematic or unnecessary single-use packaging – acting as a platform for learning and leadership.

A call to action on Earth Day 2024

As we commemorate Earth Day 2024, it serves as a poignant reminder of our collective responsibility in tackling the issue of plastic pollution. The convenience of unrecycled plastics is overshadowed by their detrimental effects on the environment. The theme ‘Planet Vs. Plastics’ is a call to action for all of us, individuals and businesses alike, to reassess our dependency on plastics and forge a path towards a greener, more sustainable future. 

The legal world is poised to play a pivotal role in this transition, with regulatory changes offering powerful support for sustainable practices. Businesses that proactively adapt to these changes will not only stay ahead of the curve but also demonstrate leadership in corporate responsibility.

Let this Earth Day be a milestone where we commit to tangible actions that will protect our planet for generations to come. Stay tuned as Bird & Bird’s experts continue to share updates, legal insights and ESG tools, helping you navigate the evolving landscape of environmental regulations. 

Authored by Hadrien Espiard

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