From tomorrow, the extended manufacturer obligations from the new Packaging Act will come into force. This means that all packaging will have to be officially registered in the future. We talked to Dr. Martin Schirmbacher, partner at Härting Rechtsanwälte and specialist attorney for IT law, about what the new regulations mean for (online) print shops and what operators must do now.
Beyond Print: We want to talk about the new Packaging Act 2022 and the producer obligations that come into force tomorrow – and what impact they will have on print shops. What is the law fundamentally about?
Martin Schirmbacher: The new Packaging Act is not that new. It came into force at the beginning of 2019 and replaced the old Packaging Ordinance. The aim of the law is to shape packaging disposal on a sustainable and competition-neutral basis and to reduce the impact of packaging waste on the environment. In addition to stricter requirements for recycling, the law tightened many obligations for manufacturers of packaging and extended deposit requirements for beverage packaging. In July 2021, there was a comprehensive amendment to the law. This is a step-by-step amendment and an adaptation to EU directives.
Beyond Print: What is the current amendment to the law about?
Martin Schirmbacher: Many of the innovations have already come into force in summer 2021. From July 1 or 3, 2022, the final changes will now take effect. These last amendments mainly concern the extension of registration obligations for manufacturers and distributors of packaging in accordance with Section 9 of the Packaging Act and for final distributors of service packaging. There are also stricter inspection obligations for marketplace operators and fulfilment service providers.
Beyond Print: To what extent do these changes affect the printing industry?
Martin Schirmbacher: The Packaging Act refers to obligations for “manufacturers”. The wording is misleading, as the law, contrary to the linguistic usage, actually means those distributors who put the packaging on the market for the first time on a commercial basis. In the case of printed products/published matter, the manufacturer is usually the publisher or printing house that places the shipping packages of flyers, business cards, brochures or other printed matter on the market. Sales packaging for printed products of all kinds is generally eligible for system participation, as it is typically generated as packaging waste in private households and other comparable sources. In general, all online stores that ship goods are covered by the Packaging Act and thus also by the registration obligation. If there is any uncertainty about the system relevance of packaging, this can be found out unproblematically via the Central Office’s product search.
Beyond Print: What will change specifically with regard to registration obligations from July 1, 2022?
Martin Schirmbacher: The existing registration obligations for manufacturers will be extended. From now on, manufacturers of packaging that are required to participate in the system will no longer be the only ones required to register, but all manufacturers and distributors of packaging filled with goods. This also includes manufacturers of service packaging, transport packaging, sales packaging and environmental packaging that typically accumulates as waste at private end consumers.
Manufacturers are obliged to obtain a license from a dual system before placing on the market (e.g., shipping) packaging that is subject to system participation. They must then register with the LUCID packaging register and provide information there on the types of packaging or, in the case of an existing registration, supplement the information on the types of packaging.
It is important that the registration and system participation is carried out before the packaging for printed products is placed on the market. The data and packaging quantities specified in LUCID must match the data and licensed quantities in the dual system at all times.
The aim of registration is to ensure transparency and legal clarity and to work towards ecological goals, such as meeting recycling quotas and promoting more sustainable packaging.
Beyond Print: How does the registration process work and what is LUCID?
Martin Schirmbacher: LUCID is the register of the Central Packaging Register Office. It is a dual system for the collection, sorting and recycling of packaging in Germany.
Registration can be done at https://www.verpackungsregister.org/
In the case of initial registration, contact details are requested (name, address, contact details, telephone number and e-mail), as well as European or national tax numbers, national identification numbers and details of the types of packaging that the manufacturer places on the market.
Manufacturers who do not have a branch in Germany can usually appoint an authorized representative to fulfil the manufacturer’s obligations. The possibility of appointing an authorized representative is also intended to address the problem of international distributors not being fully aware of the German legal situation and thus not fulfilling their obligations.
Packaging that is not registered in the LUCID packaging register may not be sold in Germany and is subject to a sales ban.
Beyond Print: What happens if you don’t register?
Martin Schirmbacher: If the regulations of the Packaging Act are violated, such as the obligation to register, there is the threat of fines of up to 200,000 euros or further sanctions such as the skimming off of profits made. Under private law, there is the threat of warnings from competitors and claims for damages. There is also the risk of a sales ban.
Beyond Print: Are there any other changes?
Martin Schirmbacher: Another change relevant for online retailers and fulfilment service providers is the extended verification obligation regarding their suppliers or manufacturers. Operators of marketplaces and online platforms must check whether manufacturers have fulfilled their obligations under the Packaging Act, i.e. are registered in LUCID and participate in a system. Contracts with retailers who do not participate in a dual system must be terminated. Fulfilment service providers, for their part, may not work for manufacturers who are not participating in a system. How this verification is carried out is up to the obligated parties. One possibility is verification via the licensing certificate issued by the respective dual system.
According to Section 15 of the Packaging Act, manufacturers or final distributors of packaging must provide end consumers with comprehensive information about the return options for the packaging and its purpose. In addition, proof of compliance with the take-back and recovery requirements must be provided. Packaging must be taken back free of charge and to an appropriate extent.
Beyond Print: What advice do you have for manufacturers of packaging for print products?
Martin Schirmbacher: Well, even if it may seem bureaucratic: In order to avoid infringements of the regulations, care should be taken to ensure that the new requirements from the Packaging Act are implemented quickly. Firstly, licensing of the packaging by a dual system and registration in the LUCID packaging register, and secondly, checking whether contractually affiliated dealers or manufacturers are fulfilling their registration obligations. In addition, an uncomplicated system should be developed for returning packaging. Customers should then be fully informed about the details.
Beyond Print: Thank you very much for the interview! And, as a brief addition from our side: Congratulations on being named “Lawyer of the Year” in the area of data protection in the latest Best Lawyers rating by Handelsblatt!
