Mind your ‘P’s and ‘Q’s: Australia’s crusade against plastics (National Snapshot)

Food packaging and serving items are targeted to be 100% plastic-free in Australia by 2025. Let’s talk about how rapidly-tightening compliance requirements in each state and territory are set to impact food service and manufacturing businesses across the country.

PLASTIC BAN TARGETS

In line with Australia’s 2025 National Packaging Targets established in 2018, there are four main objectives in managing packaging in Australia. These are:

-          100% of packaging being reusable, recyclable or compostable by 2025

-          70% of plastic packaging being recycled or composed by 2025

-          50% of average recycled content included in packaging by 2025

-          To phase out of problematic and unnecessary single-use plastic packaging by 2025

To ultimately meet these targets, several single-use plastic items, in particular food product packaging items, are being banned in different states and territories to combat the ever-growing burden of such items on the environment and waste management systems. However, the wording of the prohibitions indicates that restrictions will become increasingly stricter with total bans on plastic in food packaging to come into effect in some states. 

We are already dealing with differing definitions of ‘plastic’ and different tolerances for recycled, recyclable, and plant-based ‘plastics’ that can create serious cross-border supply headaches, only likely to get worse over the next few years. 

Don’t get taken by surprise - see our key ‘take-aways’ below and a state-by-state deep dive at the end of this blog. See Next Steps for more on how Universal Counsel can help your business to navigate current and future compliance and commercial challenges. 

KEY TAKE-AWAYS

• As of April 2023, the sale or supply of items made from single-use plastic such as drinking straws, cutlery, cups, plates, drink stirrers, and polystyrene drink/food containers are already prohibited in all Australian States and Territories.
• Exceptions are generally very narrow and safety-based, including contexts in which the use of glass or metal alternatives could pose a risk to human health and safety. 
• Currently, food-contact packaging used for food that is not made on premises, i.e. food for retail sale, is excluded from the plastics bans in all States and Territories, though how that exclusion is framed differs between each region's legislative and regulatory framework.
• To ensure compliance, businesses must consider not only State-level legislation and regulation but also local council policy as it applies to the regulation of registered food businesses. Further, customer policies, voluntary industry and international standards, and laws concerning the claims made about products and packaging all need to be considered. See our Greenwashing Update here.
• Businesses need to prepare for further and more aggressive expansions of the current bans in the near future. 
• Particularly, manufacturers and suppliers of food products for retail sale need to be planning now for a ‘plastic-free’ future - these forecasted changes may impact where you choose to invest your innovation dollar now, as ‘recyclable’ and/or ‘recycled’ alone are unlikely to meet requirements. 
• Beware: The Victorian law is one of the most ambitious and far-reaching in scope. From 1 January 2026 the Victorian government plans to ban the use of plastics (including biodegradable and recycled plastics) in all food and drink packaging, including food-contact packaging for retail sale. This will require significant forward-planning and investment where reusable, paper/fibre, glass, or metal packaging options are not currently fit for purpose.

NEXT STEPS

Universal Counsel can support your business in transitioning to more sustainable plastic-alternative materials and compliant practices across your business. UC F&B and UC Health specialise in end-to-end support and solutions tailored for businesses in food, health, and beauty that may be captured by this ban.

Your to-do list:

• Contact us to discuss compliance strategy and risk mitigation. Universal Counsel regularly provides path-to-market and path-to-growth project support, claims & compliance audits, labelling reviews, and dispute resolution services designed to help your business minimise risk while optimising innovation opportunities.
• If you receive a notice of investigation or infringement from the EPA, your local council, or any other regulator, contact us immediately to discuss your compliance and dispute resolution options.

• Consult with your suppliers and contract manufacturers to arrange an exchange for any aged non-compliant stock where possible and discuss their capabilities for providing compliant and sustainable packaging. If you have issues dealing with existing suppliers regarding refunds or would like to be connected with suppliers of compliant alternative products, we can help.

• Ensure that any claims you make regarding materials or practices used in your business being ‘sustainable’ or about their benefits for the environment are clear, evidenced, and lawful. UC provides both advice and workshop-style project support in developing claims and collateral as well as expert analysis, supply chain audits, and support in gathering critical evidence. 

• Consider whether there may be grants or co-investments available to convert your current practices into sustainable strategies to comply with the current and future bans. Universal Counsel provides expert support in applying for grants and managing financing and investment arrangements.

Contact us today: food@universalcounsel.com.au // health@universalcounsel.com.au

See our PATHWISE project pathway planner to help you find the solution that’s right for your business.

DEEP DIVE: PLASTICS BANS ACROSS AUSTRALIA

The single-use plastic bans apply to a huge range of businesses, not just take-away food service restaurants, including retailers, manufacturers and suppliers to retail AND food service, and businesses that only engage in incidental food supply, including for charitable, sporting, education, or community purposes.

The exceptions are inconsistent across the country but increasingly narrow in all circumstances. Only the following specific single-use plastics can continue to be used for the below reasons in all states and territories:

• Drinking straws before people who require them due to a disability or for medical reasons
• Cutlery where required in correctional or mental health facilities to prevent harm or injury.

The current status (as at April 2023) of plastic bans across all states and territories is outlined below. 

ACT

The ACT has been making a conscious effort to gradually fade out single-use plastics since 2011 with the first banning involving plastic shopping bags. Since then, single-use items such as cutlery, stirrers and expanded polystyrene (EPS) food and beverage containers were banned from July 2021 and further items including plastic straws and all oxo-degradable plastics (plastics which are only degradable, not biodegradable) were banned in July 2022.

Now, the ACT Government is considering the implementation of additional regulations, in line with its ‘Phasing out single-use plastics’ Next Steps Policy, to phase out items such as EPS products and packaging as well as single-use takeaway containers. The ACT is also considering whether single-use items initially flagged for longer-term transitions (plastic plates and bowls and heavyweight and boutique plastic bags (greater than 35 microns thick)) should be phased out earlier than planned due to the success in other jurisdictions.

Under the ACT legislation, a person who supplies a banned plastic product may face a maximum penalty of $8,000. This same penalty also applies to a person who intentionally or recklessly falsely represents that a product is not a banned plastic product when they supply it. Additionally, where a person fails to comply with a notice given by an authorised officer to dispose of a prohibited plastic product, a maximum penalty of $3,200 will apply.

NSW

From 1 June 2022, the sale and supply of many single-use plastic items has been prohibited in NSW, with bans on further single-use items including straws, stirrers, cutlery, plates, bowls (without lids), and foodware and cups made from EPS introduced on 1 November 2022.

Before implementing further restrictions, the NSW Government is working to ensure sustainable alternatives to single-use plastics are readily available in industry by 2024. After that grace period elapses, a review will be undertaken to determine whether further phase-outs are appropriate. The NSW Plastics Action Plan outlines the items likely to be reviewed at this time as plastic bowls and cups (with lids), oxo-degradable plastics, fruit stickers, heavyweight plastic shopping bags, barrier plastics, and product bags.

While the consequences for non-compliance are assessed on a case-by-case basis, penalties could include $1,100 on-the-spot fines for individual suppliers (such as sole traders), $11,000 court penalties for individual suppliers or a maximum $55,000 penalty for corporations. Penalties issued via court proceedings could potentially increase for large manufacturers, wholesalers, and distributors (and court costs and legal expenses need to be factored in).

NT

Plastic bags have been banned in the Northern Territory since 2011, with those in violation of this facing a fine of up to $8,100.

From 1 January 2019, the City of Darwin introduced a plastic ban prohibiting the sale, supply or use of disposable coffee cups, smoothie cups, lids, straws, cutlery, stirrers, plates, bowls, and takeaway containers from all events on Council land and at Darwin’s markets. 

Reducing waste is a high priority for the City of Darwin, with the preferred approach to combatting this issue being avoiding packaging altogether by utilising compostable disposable alternatives. The government is working with local distributors and businesses to ensure these changes are easy and achievable for the wider community.

While the penalty for non-compliance with Darwin’s single-use plastics laws is not clear, we do know that the banning of supplying single-use plastics is reflected in Darwin City Council’s permit and leasing conditions. This means that if a stallowner were to sell or supply these goods on Council land they would be in violation of their permit or leasing conditions and could face the maximum penalty of $162,000 for a violation of Darwin City Council’s By-laws.

QLD

Queensland introduced its ban on single-use plastics on 1 September 2021 as part of the state’s plan to tackle plastic pollution. Similar to other states in Australia, the ban prohibits the purchase and supply of single-use plastics such as straws, stirrers, plates, unenclosed bowls, cutlery and EPS takeaway food containers and cups.

Due to strong public support for this initiative, Queensland is introducing further restrictions from 1 September 2023 which expand the ban to include cotton buds with plastic stems, EPS loose packaging, plastic microbeads in rinseable personal care and cleaning products, as well as heavyweight shopping bags and the mass release of lighter than air (helium) balloons.

As of 1 September 2021, a business or not-for-profit organisation may face a maximum fine of 50 penalty units ($11,100) for each of the following if they:

• supply a banned single-use plastic item
• provide false or misleading information to another person about a banned plastic item
• provide false or misleading information to another person about whether or not a plastic item is compostable
• do not provide clear and legible written information about whether a plastic item is compostable
• do not comply with a notice under the Waste Reduction and Recycling (Plastic Items) Amendment Act 2021.

SA

South Australia has taken a strong approach to meeting the national targets by 2025. From 1 March 2021, single-use plastic products including stirrers, cutlery, straws, were banned from sale. The government expanded the ban a year later on 1 March 2022 to prohibit the supply and distribution of EPS cups, bowls, plates and clamshells containers. It also became an offence to sell, supply, distribute or manufacture oxo-degradable plastic products (such as plastic bags) in South Australia from 1 March 2022.

This year, the South Australian government intends to phase out by 1 September single-used plastic bowls and plates, and plastic pizza savers commonly found inside cardboard pizza boxes.

By 1 September 2024, plastic produce bags (found in fruit and vegetable sections of supermarkets) will be phased out, as well as thick supermarket or boutique-style plastic bags, plastic bread tags, single-used beverage containers (including coffee cups) and other single-use plastic food containers such as those commonly used for takeaway meals.

By 1 September 2025, the government will begin targeting food product packaging such as plastic fruit stickers, plastic soy sauce fish, and other pre-packaged and attached products such as products that include cutlery or plastic straws within their packaging.

Retailers or suppliers found to be distributing prohibited items may face a maximum penalty of $20,000, or a maximum of $5000 for individuals. Further penalties may also apply to persons or retailers for misleading or deceptive claims about plastic products.

TAS

Tasmania introduced a law banning single-use food packaging that came into effect from 1 July 2021. Banned plastic items include cutlery, sauce sachets, takeaway hot food containers and lids, straws, plastic-lined noodle boxes, plastic-lined coffee cups, lids on takeaway and plastic sandwich wedges.

Unlike other states, the ban in Tasmania only applies to single-use plastic containers with a volume of less than 1L.

Failure to comply with the ban may result in a retailer being issued with an Infringement Notice and fines of up to 20 penalty units for individuals and 100 penalty units for business and organisations may apply.

VIC

Information on Victoria’s single-use plastic ban can be found in our recent blog post here:

https://www.universalcounsel.com.au/blog-posts/2023-plastics-ban-everything-you-need-to-know

WA

As part of Western Australia’s ‘Plan for Plastics’ announced on 13 June 2021, Stage 1 regulations were introduced from 1 January 2022 to ban the supply and distribution of single-use plastic items such as plates, unlidded bowls, cutlery, stirrers, straws, unlidded cups for cold beverages, thick plastic shopping bags, PES takeaway food containers, and unlidded takeaway food containers

Recently, the Stage 2 plan came into effect on 27 February 2023 that expands the ban on single-use and disposable plastic items and materials to include loose and moulded EPS packaging, degradable plastics, produce bags, EPS cups and food trays (such as those used to package raw meat and seafood), coffee cups and lids, lids for cups, bowls, trays, plates and takeaway food containers, and trays for takeaway foods. It is WA’s goal that all of these products will be phased out by July 2025 to comply with the national plan.

The penalty to be imposed for the sale and supply of banned single-use plastic items is $5,000.

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