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24 August 2023 General

FPA response to the Scotland Circular Economy Bill consultation

The Scottish Circular Economy Bill gives powers to Scottish ministers to impose charges on packaging along with other measures – with paper cups stated as first in line for a charge. The consultation covers Scotland’s circularity strategy, which is interpreted into law by the Bill.

Is a statutory requirement needed for a circular economy strategy?

Yes, but these proposals do not constitute a strategy with relevant and measurable objectives. It is a confusing wish list containing contradictions, is lacking in rigorous strategical input, is not all encompassing, doesn't cover all-natural resources and is in danger of putting the Scottish economy at risk.

A well-formed strategy would give certainty, drive investment and provide a level playing field. The strategy should be based on science and not political expediency, which may not coincide with the political agenda. We won’t know until rigorous and impartial impact assessments have been conducted. The impact assessments should be subject to peer review and scrutinised by the Regulatory Policy Committee.

A more well thought through and evidenced backed strategy will achieve many of your aims, but must recognise the need not to put a brake on economic growth and must work to improve productivity, which in Scotland is lower than the EU and BRICS nations, and the USA.

There should be no de minimis when it comes to the actions resulting from the strategy.

Is there anything else you would like to say about a circular economy strategy? (Section 1 – 5)

Please see answer to Q.1

The circular economy strategy should be science-based with robust evidence as to the likely impact of the policies proposed.

We are concerned smaller business – which will be most proportionally financially impacted by the proposals – are aware and will be consulted. Our recent survey shows Scottish independent retailers are unaware and have not been asked to contribute to the consultation.

Frequent reviews are required to reflect a changing landscape, including other legislation and the impact of Extended Producer Responsibility

How should circular economy strategies be aligned with climate change plans and other environmental targets (including biodiversity goals)?

We agree circular economy plans should promote the better use of resources, which includes getting more use out of goods and materials to save resources, but should circularity trump biodiversity? As an example, a reuse system increases the amount of water, CO2 and chemicals needed to ensure reusable containers are hygienic and safe.

Are statutory circular economy targets needed?

Yes, because this gives certainty and drives investment. But, statutory targets must be in line with the other three UK nations and ideally with EU targets. Targets are defined in forthcoming Extended Producer Responsibility legislation and we require reassurance Scotland's targets will not be out of alignment. This includes Scotland's DRS targets.

Targets must also apply to importers.

How is progress towards achieving targets going to be measured? Will placed-on-market tonnages be based on EPR data submissions? Will recycling information be derived from the same sources used to assess EPR modulated fees? Are calculations going to be consistent across the UK? If not, then we risk objectives being achieved in one nation and not in another, with no apparent reason as conditions are the same.

Is there anything else you would like to say about powers to introduce circular economy targets? (Sections 6 and 7)

Government and ministers enabling powers should only be used when the proposals have undergone a consultative process and with the appropriate impact assessments and review of science-based evidence.

The ability to amend and review targets should be possible with a consultative process with the relevant stakeholders based on impact assessments and real-life experience.

Powers to introduce circular economy targets should not discourage voluntary agreements and investment in innovation.

Consideration must be made of the impact on targets of UK legislation, such as modification to the Plastic Packaging Tax and to EPR modulation.

We must also take account of current and future reprocessing facilities, and targets must be developed in conjunction with these resources. The introduction of new facilities not only depends on investment, but also planning consent. In the event of higher targets, will local authorities be required to wave through planning applications for reprocessing facilities? How does Scottish Government view chemical / advanced recycling? Will targets accept mass balance as a means of measuring recycled content?

Restrictions on the disposal of unsold consumer goods

Disposal requires more precise definition. For example, does it encompass donating unsold goods to charity seen as a disposal route?

When items are banned if insufficient time is given to using up stocks then these items will become waste. This means all sellers of banned items need to be contacted. We are pleased that Scotland did conduct a national campaign for its recent SUP bans, unlike the UK government, which is failing to reach small independent operators for its forthcoming bans. We very much hope future bans and policies impacting on retailers will be communicated clearly to all retailers. There should also be a minimum six-month period to sell banned stocks from the date the ban comes into force and not from the date legislation is passed by the Scottish Parliament of which retailers are not aware.

Consideration must also be given to mislabelled food and drink resulting in product recalls and often not able to be repackaged. We cannot see any other option than to scrap recalled products.

Charges for single-use items

Should Scottish Ministers have powers to make regulations that require suppliers of goods to apply charges to single-use items?

Absolutely not, without full consultation with all stakeholders and with impact assessments. The process must begin with roundtable discussions with stakeholders, followed by an impact assessment to be published with the publication of the consultation. A second impact assessment should follow before legislation is drafted – to be followed by a consultation on the legislation. This should apply to: levies, bans, charges, taxes, and any other market restrictions.

In the case of charges, alternative actions by consumers will be sought. These alternatives must be tested with result published.

A consultation must be conducted on enforcement measures and sanctions.

The impact of national legislation must be factored before the Minister considers applying charges. An example being the mandatory retailer takeback of paper cups, which comes into force in 2025. Charges on paper cups should not be considered until after this scheme has been given the time to prove its effectiveness. All four nations are signatories to EPR, which includes mandatory retailer take back of paper cups.

We seek to preserve the Internal Market Act to ensure a level playing field between the nations and the ability to trade between them unhindered.

Is there anything else you would like to say about charges for the supply of single-use items? (Section 9)

With respect to revenue from charges, how is money going to be allocated? You have stated environmental causes, but may a retailer forward the funds to an organisation they interpret to be an environmental cause, such as Greenpeace or RSPB, or does this money go to a central pool to be reallocated by a body selecting suitable causes? If the latter then it becomes a tax.

The word 'suppliers' in the legislations needs definition. Would this be a business supplying the charged items to another business, or supplying them to the public, or to the end user if an institution such as a prison?

How do you think Scottish Ministers should use their powers to have the greatest impact in transitioning to a circular economy?

To have the greatest impact on transitioning to a circular economy they should tackle those issues proven to have the greatest impact and not assumed to have an impact, or to be politically expedient. As examples, why is there is nothing in the strategy about cigarette filters, chewing gum, car tyres, water usage / quality, air quality, and textiles?

To have the greatest impact all stakeholders need to be involved in the process, voluntary agreement should be encouraged, and actions taken be sure not to discourage them.

Ministers should use their powers to encourage the development of new reprocessing facilities and use their powers to support planning applications.

The circular economy must be for everyone and not be to the detriment of those on the lowest incomes. A committee will be required to review the potential for regressive policies.

Household waste

Should it be a criminal offence for a householder to breach their duty of care in relation to waste under the Environmental Protection Act 1990 (e.g. to fail to ensure that waste is disposed of to an authorised person)?

Is there anything else you would like to say about household waste and enforcement of household waste requirements? (Sections 10 & 11)

Is further action needed, either within or outwith the Bill, to tackle fly-tipping effectively? If so, what action is needed?

The onus on should be on householders to ask for evidence the waste carrier has an up to date waste carriers license. Communication to householders is needed, especially if waste carriers' licenses are falsified and householders do not know what one looks like.

We recommend a publicly accessible register is maintained.

Is there anything else you would like to say about household waste and enforcement of household waste requirements? (Sections 10 & 11)

Reference 47B

Targets for local authorities relating to household waste recycling

(1)  The Scottish Ministers may by regulations make provision imposing targets on local authorities in relation to their carrying out of their waste management functions, insofar as they relate to the recycling of household waste.

We recommend the word 'may' be replaced with 'must'

We wish to see a review group established to assess Pay As You Throw as the means of funding household collections as we believe PAYT will drive up recycling.

Is further action needed, either within or out the Bill, to tackle fly-tipping effectively? If so, what action is needed?

Action is needed on communal bins, when bins are full and responsible disposal of waste becomes impossible, and bags of waste are placed outside bins where they are attacked by animals.

Household waste recycling – Code of Practice and local targets

Should the Code of Practice on household waste recycling (currently a voluntary code) be put on a statutory footing?

Yes, we believe Wales has set by far the best example and has achieved improved recycling rates. Without a code of practice how can households be obliged to cooperate and how can local authorities be enforced to adopt policies to deliver improved recycling rates? Households need to understand the services and how to use them.

Any statutory footing should encourage packaging suppliers to develop products to meet design for recycling guidelines, and recyclers to provide services and systems for recycling materials that meet these guidelines.

Is there anything else you would like to say about a Code of practice on household waste recycling? (Section 12)

Implementation of EPR should focus funding on the development and improvement of services for collection and recycling, using the funding provided by packaging suppliers under their required responsibility. The code of practice must be based on a strategy for consistent recycling waste collections by local authorities – as in Wales and as proposed in England.

Should Scottish Ministers have powers to set targets for local authorities relating to household waste recycling?

Yes, we know this is effective in reaching targets and encouraging circularity.

Is there anything else you would like to say about targets for local authorities relating to household waste recycling? (Section 13)

Scottish local authorities and government should consider worldwide best practice.

Targeting must relate to EPR as industry is paying and must be consistent with EPR. While housing stock is a factor it must not be used to weaken or delay the implementation of targets.

Recent studies in the US (for instance) support the wider acceptance of fibre-based foodservice packaging (for instance) through household waste collection. The Foodservice Packaging Institute (FPI) food residue study finding that for paper and paperboard and plastic containers, both food contact and foodservice categories had similar, and extremely low rates of significant residue.

Is further action needed, either within or outwith the Bill, to support local authorities to achieve higher household recycling rates? If so, what action is needed?

Further international evidence shows the acceptance of paper cups, beverage cartons, and flexible packaging through appropriate reprocessors.

Pay As You Throw

Littering from vehicles

Should civil penalties for littering from vehicles be introduced?

Yes, this is in line with England, with the owner of the vehicle being fined rather than the person who threw the litter.

The ultimate sanction is to confiscate the car.

In addition, there should points on licenses, though an awareness course for a first minor offence can be offered.

Is there anything else you would like to say about civil penalties for littering from vehicles? (Section 14)

Who pays for the cost of seizing and disposal of the litter? This should be the vehicle owner with local authorities and / or landowners being reimbursed by the car owners from which littering has occurred.

Reference 88C

Littering from a vehicle: Scottish civil penalty regime

An authorised officer of a litter authority may impose a civil penalty charge on the keeper of a vehicle if satisfied on the balance of probabilities.

We feel 'may' should be replaced by 'must'

The legislation gave the impression the vehicle from which litter / fly-tipping occurs is stationary, so need to cover moving vehicles.

The legislation states 'No civil penalty charge notice may be given after the end of the period of three months beginning with the day on which the act of littering in question occurred'. We question why is there a time limit?

Should enforcement authorities in Scotland be given powers to seize vehicles linked to waste crime?

Yes, both for littering and fly-tipping, whether stationary or moving.

Should Scottish Ministers have powers to require persons to publish information on anything they store or dispose of (except in relation to domestic activities)

Does this mean businesses?

Would this include a single person working from home with the business registered to the home address?

Is there anything else you would like to say on reporting? (Section 17)

Who maintains the paper trail to enable reporting?

Will this be in the same manner as food waste collection information and will food waste be reduced to less than 5kg?

Is weight to be the metric? Will there be a standard reporting format and frequency? How, online? Will a compliance agency be needed?

Paper cup takeback will be separately reported so how will double reporting be avoided?

How should Scottish Ministers go about identifying which types of waste and surpluses should be subject to mandatory public reporting?

Relate to EPR, categorise in the same way.

Net Zero

Do you think the Bill will play a significant role in achieving these net zero targets? Please give your reasons.

Net Zero has become a much abused term, which is being reviewed by the Competition & Markets Authority. The targets are becoming meaningless and are losing consumer confidence.

The Bill should play a role in reducing carbon on current consumption levels, but population growth must be factored.

One key way to reducing carbon is to increase productivity, but this isn't mentioned in the strategy.

If the Bill is being judged by 'achieving net zero' then all that happens is more carbon offsets are acquired. What of imported goods? Do they count toward carbon reduction targets? We refer to EU carbon border transfer measures.

With regard to packaging, there is scope for improvements in production, but the threat of bans and charges are a disincentive to investment. As is investment in intelligent packaging.

It should remembered the carbon waste resulting from food waste far outweighs the carbon associated with packaging.

There is a Policy Memorandum accompanying the Bill. This aims to set out the underlying reasons why the Scottish Government thinks the Bill is necessary. Did you find the discussion under “Sustainable Development” in the Policy Memorandum helpful or unhelpful in terms of understanding what impact the Bill would have in terms of reaching these net zero targets?

Article 60 is incorrect. No one, so far, is able to provide costs for reusable systems and the full environment impacts are not known.

The Memorandum should address reusable systems. Definitions are required for 'reusable' and 'refillable'.

The memorandum rightly points out that circular economy and waste policy is a complex landscape, with Scottish, UK, European, and global dimensions to consider. And building a more circular economy requires all parts of Scottish society and industry to play their part.

Co-design processes (particularly for recycling provisions) should take views from all relevant parts of society to ensure that effective regulations are developed, but should now take the opportunity to remove policy elements within the Bill that are likely to have unintended consequences, such as negative environmental impact on carbon emissions and charges and taxes on single use items having a negative impact on individuals and business.

Are there any areas not addressed by the Bill that you believe should be included? If so, what are they?

Yes, tobacco filters and e-cigarette paraphernalia and chewing gum must be addressed. This is long overdue.

Do you have comments on how this wider framework should function to support Scotland's transition to a circular economy, in particular on the provisional Resources and Waste Common Framework?

The strategy confuses waste reduction with delivering a circular economy.

No mention of recycling facilities is made; nor carbon capture; nor chemical recycling;

nor repair and making consumables last longer.

The strategy must recognise more fully the need to promote trade and must not disadvantage the Scottish economy.