Phasing out problematic and unnecessary plastics in NSW

The Plastic Reduction and Circular Economy Bill 2021 (NSW) (Bill) gives effect to reforms outlined in the NSW Waste and Sustainable Materials Strategy 2041 and the NSW Plastics Action Plan. Introduced to the Legislative Assembly on 20 October 2021, at this time it is yet to be debated in the NSW Parliament.

In particular, the Bill addresses the NSW Government’s commitment to:

• prohibiting the supply of problematic or unnecessary plastic items;
  
  
• setting design standards for items of environmental, human health or economic purposes; and
  
  
• establishing mandatory product stewardship requirements for brand owners of regulated products.

The following sections outline how the Bill gives effect to each of these commitments. 

Meaning of ‘supply’

It is an offence for a corporation or individual, while carrying on a business, to supply a prohibited plastic item or supply an item that does not comply with a design standard. The maximum penalty for a corporation is 500 penalty units ($55,000).

The definition of ‘supply’ is broad, and includes to: 

• sell, supply, re-supply or distribute the item;
  
  
• receive or possess the item for the purpose of supplying it to another person;
  
  
• an offer to supply the item, including advertising the item or making other representations with the intention of supplying the item; and
  
  
• display the item with the intention of supplying the item.

A person ‘supplies’ an item whether or not a fee is charged or the supply is incidental to the supply of another thing.

Prohibited items

Problematic or unnecessary plastic items

The Bill will phase out the supply of:

• lightweight plastic bags (specifically, a bag with handles with a thickness of 35 microns or less);
  
  
• single-use plastic straws, stirrers, cutlery, and cotton buds; and
  
  
• expanded polystyrene food service items. 

Lightweight plastic bags will be phased out over a minimum of six months after assent to the Bill, with the other listed items to be phased out from 1 November 2022. 

What plastic items are excluded from the ban?

Both integrated packaging and ‘barrier bags’ are excluded from the ban. Integrated packaging  is defined as a plastic item that, by way of a machine-automated process, is:

• an integrated part of packaging material used to seal or contain food or beverages, including pre-packaged portions of food or beverages; or
  
  
• included within, or attached to, packaging material used to seal or contain food or beverages,  including pre-packaged portions of food or beverages.

Barrier bags are designed and intended to be used to contain waste, items for medical purposes or to contain or protect unpackaged food.

Additional prohibited plastics may be prescribed by regulation or be declared by the Minister by a notice published in the NSW Government Gazette. 

Design standards

The regulations may prescribe design standards for an item for environmental, human health or economic reasons. 

Design standards may contain requirements for the:

• composition of an item;
  
  
• the way in which an item must be packaged, labelled, designed, constructed or manufactured;
  
  
• independent testing and verification to determine compliance with a design standard; and
  
  
• independent testing to determine whether a representation made in relation to an item is accurate.

The only design standard that has been specified in the Bill is that a rinse-off personal care product (e.g. face masks, toothpaste, body wash, shampoos) must not contain plastic microbeads less than 5 mm wide. 

Mandatory product stewardship requirements

The Bill also proposes a framework for a mandatory stewardship scheme, allowing for regulations to prescribe a requirement for the stewardship of the life cycle of a ‘regulated product’, including the development, design, creation, production, assembly, supply, use or re-use, recovery, recycling or disposal of the product. 

Regulations may also specify a target for or in relation to a product stewardship requirement, including a target expressed as a percentage. Targets may also be set by the Minister. 

Who must comply with the stewardship requirements?

The stewardship requirements target the owner of a product name (e.g. the trade mark, brand name or trade name) under which the product is supplied (‘brand owner’). 

The regulations may prescribe circumstances in which a licensee of a product name, franchisee, or person who first supplies the product in Australia is taken to be a ‘brand owner’. 

A regulated product, to which the stewardship requirements apply, can include a substance, packaging material and a scheme or service. 

What brand owners need to do

Aside from compliance with the product stewardship requirement(s) once prescribed, brand owners will also need to comply with record keeping requirements, prepare annual reports in accordance with the regulations. 

If required by the regulations, the brand owner of a regulated product must also prepare an ‘action plan’ setting out how they intend to comply with the product stewardships requirements, and which may include indirect actions intended to offset adverse environmental impacts generally or specifically in connection with the regulated product.

This action plan must be approved by the regulator before the brand owner can supply the regulated item. 

The brand owner of a regulated product must comply with a product stewardship requirement for the regulated product. The maximum penalty for a corporation is 4,000 penalty units ($440,000) and 400 penalty units ($44,000) for each day the offence continues. 

The bigger picture of plastics regulation

The proposed ban on the supply of lightweight plastic bags and single use plastics is consistent with comparable legislation passed in other states and territories. The prohibitions in the Bill are also consistent with the Commonwealth Government’s commitment to phasing out ‘problematic and unnecessary plastics’ in its National Plastics Plan. This includes phasing out expanded polystyrene consumer food and beverage containers and plastic packaging products with additive fragmentable technology that do not meet relevant compostable standards. 

As the Bill is debated and amended (if at all), it will be important to keep a watchful eye on exactly what types of plastics are captured as ‘problematic or unnecessary plastics’ and, in particular, the definition of ‘plastic’. The current definition of ‘plastic’ includes materials made from both plant extracts and fossil fuels (which, by implication, includes all bioplastics). This differs from the approach taken in other jurisdictions such as Western Australia and South Australia, whereby certified industrially compostable paperboard products lined with ‘polylactic acid’ (or PLA, a type of bioplastic) are or will be exempt from the respective prohibited plastics bans. 

As always, the devil is in the detail and close attention must be paid to the extent to which the Bill and plastics regulations in other jurisdictions differentiate between the many types of plastics (e.g. oxo-degradable plastics, PLA-lined items, compostable plastics), as varying approaches to this may necessitate careful navigation by businesses supplying plastics across multiple jurisdictions.