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Introduction
Plastic pollution is one of the most widespread and difficult forms of pollution that humanity currently faces in today’s Triple Planetary Crisis of climate change, biodiversity loss and pollution. In the 20th century, one of the most impactful scientific and industrial breakthroughs was the creation and subsequent mass adoption of plastic products. They have proved to be hardy, dependable, corrosion proof, and inexpensive. From household utensils and product packaging to medical equipment and furniture, plastic became one of the most used materials globally with 460 million tonnes produced annually by 2019.
However, it is now apparent that there are many downsides to the widespread use of plastics. First, they are non-biodegradable, meaning that plastics, if disposed of inappropriately, can stay in nature unchanged for decades, or even centuries. Coupled with inadequate local waste management systems across populations globally, millions of tonnes of plastics are dumped into the environment annually. Methods of disposal like incineration and landfilling release harmful carbon emissions.
Plastics have posed a hazard to both land and marine animal life, with many animals harmed by the plastic articles or microplastics in which they have become entangled or that they have consumed. Over time, plastics break down in the environment into tiny shreds and particles called microplastics and nanoplastics that find their way into water, soil, and food. It has also come to light that a quarter of the over ten thousand chemicals used in plastics production are of potential concern to human safety and health, posing a great health risk to our global populations.
Plastics manufacturers, importers, and distributors all play a role in the accelerating global burden of plastics. The term “producer” refers to private businesses that introduce these goods to the market. These private businesses collectively introduce millions of tonnes of products with plastic into the market annually. Coca-Cola – just one global corporation – produces three million tonnes of plastic packaging annually. According to a UN report on plastics science, 46% of plastic waste in Africa and Asia is from plastic packaging for products like Coca-Cola bottles.
This is where Extended Producer Responsibility (EPR) comes in. Extended Producer Responsibility is a new policy approach that involves having the producers of products take measures to participate in minimising the negative environmental impact of these goods post-consumption. These measures can be taken by producers at various phases of the product lifecycle, including design, production, consumption, and disposal. They include:
The concept of EPR was first introduced by Thomas Lindqvhist in his dissertation titled Extended Producer Responsibility in Cleaner Production in the year 2000, and after over two decades, it has been integrated into the European Union environmental policy framework through multiple EU directives including the Waste Framework Directive, the Packaging and Packaging Waste Directive, and directives on End-of-Life Vehicles and Waste from Electrical and Electronic Equipment. EPR is an increasingly promising policy tool for achieving a sustainable global economy. Natural resources such as critical minerals and metals are finite, and as the extraction of raw materials has been rising globally this accelerates a terrible toll on our environment, human and non-human species, our health, and the climate.
Implementation of EPR Globally
One of the unique approaches to implementing EPR is the creation of Producer Responsibility Organisations, or organisations where different producers of a particular product can come together and form a joint compliance body from which they can form a common pool for funds and conduct programmes to meet EPR obligations jointly. The EU has arisen as the global leader and pioneer in the integration of EPR into its environmental regulatory framework. Various programmes currently being implemented under EPR in Europe include:
EPR has also been adopted in many nations globally, such as the USA, Canada, Japan, UAE, Nigeria, and South Africa, among many others. Many more nations like Kenya have introduced EPR legislation and have begun implementation.
However, with an estimated rise in plastic waste globally from 353 million metric tons per year of plastic waste in 2019 to 1,014 million metric tons per year by 2060, the urgency of implementation of EPR becomes very apparent.
The current efforts at integrating EPR into regulatory frameworks have shortcomings, too. First, in many EPR regulations, including the EU 2008 Waste Framework Directive, more sustainable product design was set out as one of the obligations under EPR. However, no mandatory rules relating to product design were introduced. Consequently, EPR compliance became focused on recycling while ignoring product design, which directly impacts the amount of plastic waste produced. While enhanced plastic waste management is vital, equally critical changes in product design, such as phasing out plastic where applicable, developing of products with longer lifecycles, and creating bio-degradable materials, took a back seat.
The next shortfall is the lack of mandatory targets for reusable content, recycling, or reduction of plastic content in products released in the market. Many producers have spoken against mandatory targets or obligations in favour of a voluntary approach, so their production can remain unlimited. Yet it is apparent when reviewing the implementation of EPR in Europe, that without mandatory requirements, the private sector continues to focus only on the bare minimum compliance with regulations to enable their profit maximization. Seeing the urgency of the matter at hand, governments and regulatory authorities must prioritise the introduction of mandatory targets that are well formulated. Poorly formulated mandatory requirements in regulations do, in fact, make it unnecessarily difficult for producers to comply and become easy targets for lobbyists and other parties who are against environmental regulation. These mandatory requirements should also reflect clear targets in reduction of plastic waste if we want to first halt rapid escalation of the plastic pollution crisis – and hopefully, reverse it.
Dynamics on the International Stage
In March 2022, the UN Environmental Assembly adopted a resolution committing to a binding international Plastics Treaty by 2025. Since then, there have been six rounds of negotiations with no obvious way forward to a final agreement. In the Zero Draft of the Plastics Treaty, countries were presented with options for every clause that range from highly ambitious to moderate action. The most ambitious version of the treaty, if agreed upon, presents itself to be a sweeping global treaty that will elevate EPR (among many other policy tools) as binding international obligations to every signatory. If adopted, this version will mandate Party states to introduce national regulations that set limits on the production of virgin plastic from fossil fuels, ban use of hazardous materials in the production of plastics, and mandate recycling among many other regulatory measures.
The treaty would also include EPR policy. The more ambitious treaty option would provide models for the EPR systems and include shared common principles. Over one hundred nations – together labelled the “High Ambition” group and spearheaded by Norway and Germany – support a comprehensive, authoritative version of the treaty. Petroleum producing nations, who have been termed the “like-minded group”, continue to frustrate the deliberations by vetoing resolutions and have stalled negotiations. There is also a fear that the numerous representatives of petroleum companies and major plastic manufacturers, part of the delegates representing the private sector, could be working to undermine a potential global consensus.
The United States in 2024 supported a high ambition version of the treaty under the previous administration, a clear deviation from its traditional pro industry stance, but reoriented itself with the like minded group earlier this year under the new presidential administration. This change is reflected by a communique sent by the USA to other nations urging them to change their stance on plastic production limits earlier this year. Geopolitical divisions, among other power dynamics, have come to the front, and negotiators are becoming increasingly frustrated. The date for the next round of treaty negotiations is yet to be determined.
Conclusion
It is now apparent that at both the individual national level and at the international level, efforts to tackle plastic pollution by introducing new policy tools such as acknowledging producer obligations through EPR have encountered pushback and complications. Disparities in extent of influence in the policy making process have become apparent, and acknowledging these imbalances should be a priority for advocates calling for the regulation of plastics. It is now more important than ever for civil society, along with policy makers interested in these matters and environmentalists in particular, to help create political goodwill and momentum when it comes to tackling plastics.
Christian Mutiga Kibaara is a Kenyan lawyer and entrepreneur, currently studying for his bar exam. He has a keen interest in environmental law, and a broader interest in using the law to solve pertinent issues currently facing society on a national and global scale.
