Katherine Southby: Beware increased packaging law enforcement

But now businesses must also beware previously dormant powers recently reawakened by Trading Standards.

We have seen a recent surge in investigations and successful prosecutions by Trading Standards of businesses found liable for producing products with excessive packaging.

This new angle of attack stems from the Packaging (Essential Requirements) Regulations.

These came into force in 2003 and impacted very little on enforcement activities. In fact, our research has shown only a handful of previous investigations and no successful prosecutions in the seven years since the regulations became law.

However, a spate of recent investigations and prosecutions for breaches of these regulations by Trading Standards officers suggests that additional resources are being focused into this area.

Those businesses who have taken these regulations to be well intentioned but toothless may be mistaken.

Meeting the Essential Requirements
Under the regulations, no packaging can be placed on the UK market unless it meets essential requirements concerning weight, volume and reuse and the heavy metal content.

There is also a requirement of particular relevance for businesses producing products where presentation and packaging is key to consumer acceptance.

This states that the volume and weight of the packaging must be kept to the minimum amount to ensure the necessary levels of safety, hygiene and consumer acceptance for the packed product.

Exactly who will judge the criteria regarding consumer products packaging and by what means is the subject of some speculation, with the test of consumer acceptance being particularly subjective.”

The regulations apply throughout the UK to people who design or manufacturer packaging, pack or fill the packaging, claim to do so by putting their name on the packaging(that is to say own brand products) or import the packaging into the UK.

The regulations apply regardless of turnover and amount or type of goods packaged.

Businesses are also required to keep evidence that packaging conforms to these requirements for four years from the date that the packaging was placed on the market. This evidence must be made available to an enforcement authority within 28 days of its request.

Substantial cost of non-compliance
Non-complying products can be suspended from supply and businesses could face an unlimited fine. In extreme cases individuals could face a jail sentence of to three months whilst failure to provide evidence of compliance has a maximum penalty fine of £5,000.

With regard to complying with the regulations, they provide for a ‘due diligence’ defence which requires for all reasonable steps to have been taken. In practice this means being able to demonstrate a robust compliance scheme that has considered and assessed the relevant issues and come to reasonable conclusions.

It also means adopting a similar risk-based approach to that taken in health and safety and other areas of environmental risk management to the design and development of product packaging.

Many businesses may already feel that this is happening as a matter of course, but documenting the decision, making steps and applying them to the obligations under the regulations could represent the way to avoid an expensive future prosecution.

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