Wednesday, January 30, 2019

Germany's new packaging law

Have you heard of Verpackungsgesetz – VerpackG? 



antique scales holding package
Changes are afoot with packaging.
Germany has long had a law that requires recycling of packaging materials (called Verpackungsverordnung – VerpackV or "German Packing Regulation"). Shippers from outside Germany were exempt. However, this loophole began to create issues.

A new law went into effect on January 1, 2019. It is called the German Packaging Act (mentioned in the first sentence). It is more strict and there are no exceptions, no minimums. There is no grace period for transition, and there are serious repercussions for non-compliance.


“No thresholds for registering and reporting“



Shipping just one item to Germany requires registration with their newly created agency translated as "Central Packaging Registry." Failure to register can result in a fine up to $57,000 (50,000 💶) and a ban on selling there.

Unlike some other countries, the German ... laws are very strict: there are no thresholds for registering and reporting. So, even if you are only placing one packaged item on the German market you will still need to comply.

They do not care about the item, but rather its packaging. Germany has a mandatory "dual system" recycling "scheme." You must be a participant in one of their approved recycling systems.



Can they really enforce this?


If you send an item into Germany, it is simply a matter of their checking to see if you are on the registry. If you are not, they can confiscate the item or even levy fines.

Here it is from a FAQ from the German government (translation is a little rough):
By the time the new law VerpackG comes into force... you also have to register with the new “Central Packaging Registry”– you have to do this before you dispatch anything to the German market for the first time. This is because you are definitely not permitted to put into circulation packaging not properly registered. The mandatory registration applies to corporations as well as small retailers. You can apply for the requisite registration number under https://www.verpackungsregister.org
Note that the governmental authority specifically mentions that "small retailers" are not exempt.
Shipping packages garden
It is said that more countries will be regulating packaging


My conclusion?


Their goals is to have every bit of packaging coming into Germany to be part of this mandatory recycling program. Even German sellers are having a hard time obtaining a license. The fines are steep. 

Sadly, for small US sellers the expense and difficulty are such that you may no longer be able to ship there.

EBay recommends compliance.


According to one official source:

For those who sell packaged goods to end consumers in Germany it is high noon: they have to adapt to the new packaging law... Affected are all so-called initial distributors of packaging, which typically end up at the private end consumer. These can be manufacturers, online dealers and distributors of packaged goods of all kinds... [note the "packaging" is the issue here].

If you are not convinced, here is an excerpt from a legal site:
"...The GPA obliges more producers and distributors – including online retailers – to register and participate in a disposal and recycling system.

Most important: Without proper registration, producers or retailers must not offer the packaging – nor therefore the products contained therein – for sale – in Germany, including via e-commerce (sec. 9 para. 5). Moreover, the authorities may impose fines up to EUR 200.000,00 (sec. 34 para. 1 and 2) on producers and retailers, including importers. Furthermore, competitors and consumer associations can claim from producers and retailers to cease and desist from any sales...

These obligations generally also apply to online retailers – because the new GPA explicitly states that it also applies to shipping packaging: If their packaging fulfils the conditions above, they must register their packaging and participate in a disposal and recycling system. This also applies to so-called secondary packaging, in which packaged products are additionally packed. The Zentrale Stelle will provide guidance on how to interpret the GPA in form of a guideline and a catalogue (listing, in its latest 2018 draft, 36 product groups for 417 products) – which, has yet, despite being announced for autumn 2018, not been published (cf. the latest info on the consultation process).
Practical tips:
  1. Producers and all other economic operators who market packaged products in Germany have to comply with the new law – even if based abroad if they sell into Germany. The term “producer” is quite broad and includes importers and distributors putting the packaging into circulation for the first time (sec. 3 para. 12 GPA).
  2. Producers and retailers must not place packaging on the market if it is not registered or not properly registered though being subject to registration. Non-compliance may result in severe consequences, including fines, damage claims and confiscation of profits.
  3. The new German Packaging Act applies from 1 January 2019. It implements the EU Packaging Directive 94/62/EC (as did the previous German Packaging Regulation). The new GPA aims at further raising the ecological standards and specific conditions for a well-functioning competition among the companies participating in the dual system for waste disposal and recycling and a fair behaviour among all parties on the market (thus developing the goals of the precedent GPR).
  4. There is no transition period. Registration, if a new obligation not previously provided for under the GPR, must take place by 01.01.2019 at the latest. Producers, importers and retailers as all other economic operators concerned can easily register online: https://lucid.verpackungsregister.org/
Please note that the above is only general information from my own research... it cannot replace legal advice. If you have any further questions, please contact a lawyer.

6 comments:

  1. I don't understand, if we send something that is completely recyclable, isn't it the buyers responsibility to recycle it?

    ReplyDelete
    Replies
    1. German law has shifted the responsibility to the shipper.

      https://www.haendlerbund.de/en/services/legal-texts/packaging-act

      8. Fines

      Both the participation in a dual system and the corresponding registration are determined by the Packaging Act as a legal duty. A violation of this rule is to be considered a misdemeanour. A fine of up to €100,000 per case can be imposed for a registration that has not been completed. Non-participation in a dual system can be punished with a fine of up to €200,000.

      In addition, the publication shall serve the purpose of guaranteeing fair competition. This allows competing companies to use the database to check whether a retailer has fulfilled the necessary registration requirements.

      Even when the Packaging Regulation was passed, courts had confirmed that a violation of the licensing duty constituted a violation of the law against unfair competition. Violations can therefore be warned under competition law.

      Attention [light bulb picture]

      The burden of demonstrating that a licence already exists lies with the distributors who place sales packaging on the market. This means that retailers must always be able to prove in the event of a case that the entire packaging (including bubble wrap and/or adhesive tape, for example) has actually already been licensed. If they are not able to prove this properly, they themselves are obliged to carry out the licensing.

      Delete
  2. Please be aware that this is a European Law that's been inforced - all European countries have more or less similar licensing arrangements :(

    ReplyDelete
  3. Not they don’t, other European countries do not have similar licensing. This is an arrangement in Germany.

    ReplyDelete
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