Food producer businesses may be inadvertently impacted by EPR rules if their brand is placed on packaging – even if the food is produced on behalf of an own brander.
The way UK organisations responsible for packaging must carry out their recycling responsibilities has changed under Extended Producer Responsibility Rules (EPR). Producers of packaging may have new reporting obligations and be required to pay fees on the data provided. The EPR is being implemented in phases, with data collection and reporting having begun in January 2023, and the first fee invoices being sent to large producers this month, October 2025. Labelling obligations are set to begin in April 2027.
The policy framework has been designed to make producers accountable for the entire lifecycle of their household packaging materials. This means that brand owners, packers and fillers, importers and others may be charged a levy on their packaging by reference to the type of material used.
However, the breadth with which the legislation is drafted may expose food and drink producers supplying products to own branders/private labels to an unexpected burden. The extent of who is ‘responsible’ under EPR is much wider than for food information purposes. For example, “brand” means a “brand name, trade mark or other distinctive mark”. A business has handled packaging if it supplies (either directly or indirectly) packaging carrying its “brand name, trademark, or other distinctive mark”.
Where there is more than one brand on filled packaging, responsibility sits with the first "brand owner" who supplies the goods even if this is just a private label manufacturer or contract manufacturer. Many suppliers have assumed if they supply to a large supermarket, for example who also has their brand on the product, that the supermarket would carry the responsibility. However, the drafting states that it is the first supplier who has their brand on the product that assumes responsibility.
This doesn’t seem to be in the spirit of the rules and will catch out a lot of food and drink producers who won't be able to shoulder the cost of compliance, ultimately leading to potential failures. In many cases, we’re talking about business-to-business brands which may have placed their brand name or a tiny logo on the back of a product as part of their arrangements with a supermarket taking on the responsibility of the brand owner.
Businesses need to check their packaging and the terms of their contracts with supermarkets or other own brander/private label customers to see whether they are required to include their brand on the packaging. If in any doubt, businesses should seek expert advice.
Where the supermarket or retailer contract currently does require their brand to be included, they should consider whether there is scope to change this either now or at the point of renewal.
For further information please contact Rob Biddlecombe.
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