‘Of all the waste we generate, plastic bags are perhaps the greatest symbol of our throwaway society. They are used, then forgotten, and they leave a terrible legacy.’

- Zac Goldsmith

Introduction:

Plastic has numerous uses and its physical and chemical properties lead to economic success. However, our relationship with plastic is complicated, as the use of plastic impedes such commercial success in the long run, in terms of impacting the environment.

The social advantages of plastic are irrefutable, it has come to occupy a central position in our day-to-day lives. However, the unsystematic removal of plastic has become a significant danger to the environment.

Therefore, to address the issue of plastic waste management in India, the Government of India through its Ministry of Environment, Forests and Climate Change (‘Ministry’), in exercise of its powers conferred under the Environment (Protection) Act, 1986, had notified the Plastic Waste Management Rules, 2016 (‘PWM Rules’) on 18 March 2016, which were subsequently amended in 2018.

Applicability:

• As per the PWM Rules, States, Union Territories, Pollution Control Boards (PCBs), Local Bodies and Panchayats are obligated to ensure effective plastic waste management.
• Further, every producer, importer and a brand owner that introduces any product into the market is primarily responsible for establishing a system for collecting back the plastic waste generated due to their products.
• A ‘producer’ is defined under the PWM Rules to include industries or individuals using plastic sheets or like or covers made of plastic sheets or multi-layered packaging, for packaging or wrapping the commodity.
• A ‘brand owner’ means a person or company who sells any commodity under a registered brand label.

As per the PWM Rules, Producers or brand owners of plastic waste are required to register with pollution control boards (‘PCBs’) and work out the modalities for waste collection system, based on Extended Producers Responsibility (‘EPR’) and involving State Urban Development Departments, either individually or collectively, through their own distribution channel or through the local body concerned.

With the introduction of the said PWM Rules, the Ministry has been on a spree to implement measures for effective management of plastic waste throughout the country, including effecting long-term improvements in waste management systems, promotion of alternative options, and effective awareness campaigns. In this regard, the Ministry, on 12 August 2021 vide Gazette Order G.S.R. 571(E) has formulated the Plastic Waste Management (Amendment) Rules, 2021 (‘Amendment Rules’), for the effective implementation of PMW Rules.

Amendment Rules and its implications:

We discuss a few of the relevant amendments in the PWM Rules, as made vide the Amendment Rules, which can effectively reduce plastic waste generation and its effects on the environment:

Extended applicability; greater accountability[1]:

To implement the PWM Rules more effectively and to give a thrust to plastic waste minimization, source segregation, recycling, involvement of waste pickers, recyclers and waste processors in collection of plastic waste fraction either from households or any other source of its generation, or intermediate material recovery facility and to adopt polluter’s pay principle for the sustainability of the waste management system, the Central Government applied the PWM Rules to every waste generator, local body, Gram Panchayat, manufacturer, importer and producer.

To expand the scope of PWM Rules, the Amendment Rules seek to include brand-owners, plastic waste processor (recycler, co-processor, etc) under the ambit of the PWM Rules.

Consequently, with the Amendment Rules coming forth, there will be a greater responsibility cast on brand owners and plastic waste processors for collection of plastic waste fraction, either from households or any other source of its generation or intermediate material recovery facility, and to adopt the polluter’s pay principle for sustainability of the waste management system.

Definition of non-woven plastic bag[2]:

The Amendment Rules have introduced the definition of ‘Non-woven plastic bag’ which reads as, ‘Non-woven plastic bag’ means Non-woven plastic bag made up of plastic sheet or web structured fabric of entangled plastic fibers or filaments (and by perforating films) bonded together by mechanical or thermal or chemical means, and the ‘non-woven fabric’ means a flat or tufted porous sheet that is made directly from plastic fibres, molten plastic or plastic films;’

The Madras High Court in Chennai Non-Woven's Private Limited v. State of T.N.[3], dealt with the usage of non-woven plastic bag and provided that in general parlance, non-woven plastic is not biodegradable or compostable and may take many years to break down in the environment. The re-usability of these bags also carries with it the risk of pathogenic transmission.

Previously, entities dealing with non-woven plastic were not governed by the PWM Rules, however, vide the Amendment Rules, they are bound to fulfil the specific conditions imposed by the Amendment Rules. This new class of plastic has been brought within the scope of the Amendment Rules as non-woven carry bags are not a sustainable alternative to plastic.

Definition of single-use plastic commodity[4] and phasing out the same:

One of the revolutionary introductions, rather a significant addition, to the PWM Rules is the insertion of the definition of ‘single-use plastic commodity’ and the obligations with respect to such commodities.

Single use plastic commodity means a plastic item intended to be used once for its purpose before being dispose of or recycled. In other words, single use plastic items have to be thrown away after one use, such as paper cups, plastic bags, straws etc. These items cannot be used multiple times.

The Ministry has earlier issued a letter bearing ref. No. D.O. No.: 17-2/2001-HSMD dated 21 January 2019 stating the concerns of single use plastic, which is often referred to as ‘disposable plastic’ to be used once before they are thrown away, and also stating the formulation of Standard Guidelines for single use plastic (‘Guidelines’) , and urging the State Government and UTs to adopt the Guidelines for effective management of plastic waste.

The Guidelines provide for legal options for phasing out the single-use plastic commodities from circulation and states that States or UT Administrations intending to introduce a prohibitive action on single use plastic products may identify a clear list of products that need to be targeted through this measure so that there is no ambiguity. Such products may inter-alia include plastic cutlery including plates, straws, stirrers.

Additionally, Starred Question Number 173 before the Lok Sabha relating to the ‘ban on single use plastic’ was answered on 12 February 2021, wherein the Ministry stated that the it has issued the guidelines for waste management system improvements and legal options for States/UTs to prohibit single use plastic items through regulatory measures etc. The questions posed were with regard to whether the Government has formulated a roadmap to meet the 2022 deadline for eliminating single use plastic; and whether the guidelines issued by the Government mandate the States and Union Territories to phase-out single-use plastic by 2022; and more importantly, details of the steps taken by the Government to sensitize people against the use of single-use plastic leading to its gradual elimination. Now, in response to the guidelines, 32 States and Union Territories have issued notifications/orders introducing regulations pertaining to complete or partial ban on plastic carry bags and/or identified single-use plastic items.

Vide the Amendment Rules, now, the manufacture, import, stocking, distribution, sale and use of the following single-use plastic commodities, including polystyrene and expanded polystyrene, shall be prohibited with effect from 1 July 2022:

• ear buds with plastic sticks, plastic sticks for balloons, plastic flags, candy sticks, ice-cream sticks, polystyrene (Thermocol) for decoration;
• plates, cups, glasses, cutlery such as forks, spoons, knives, straw, trays, wrapping or packing films around sweet boxes, invitation cards, and cigarette packets, plastic or PVC banners less than 100 micron, stirrers.

It has been observed that the sustainable alternatives for the aforesaid items mentioned in (a), such as the decoration item options like paper lanterns, recycled bunting, fluid ear wash, bamboo cotton buds, organic cotton makeup pads etc., and for (b) such as stainless steel straws, bamboo straws, glass or porcelain plates and mugs, reusable bamboo utensils, a travel cutlery set etc., are easily available. And therefore, there is now a definite deadline to phase out the popular single use plastics in the market and increase the usage of alternative materials.

The Amendment Rules also intend to provide ample time to manufacturers, importers, producers, and brand-owners to arrange for sustainable alternatives of the abovementioned single-use plastic commodities and change their respective business models to align with the mandate of the new law of the land.

It may be noted that many challenges have been faced in the implementation of the abovementioned regulatory provisions introduced by States and UTs. It is in light of the same that the provisions relating to usage of ‘single use plastic commodities’ have been included to regulate single-use plastic items on a pan India basis.

Changes in marking or labelling:

The requirement of marking or labelling has been extended to ‘plastic packaging’ in addition to ‘plastic carry bags’ and ‘multi-layered packaging’, vide the Amendment Rules.[5]

1. Marking or labelling of carry bag and plastic packaging – Name, registration number of producer or brand owner and thickness of the carry bag and plastic packaging should now be clearly disclosed on the carry bag and plastic packaging.[6] Earlier, only the name and registration number of the manufacturer was required to be mentioned. With the effect of the Amendment Rules, brand owners or producers, as the case may be, will also have to mention the aforesaid information on the carry bag and plastic packaging.
2. Marking or labelling of multi-layered packaging - The PWM Rules provide for the requirement of name and registration number of the manufacturer in case of multi-layered packaging. However, the Amendment Rules exclude the marking or labelling requirement of multi-layered packaging used for imported goods.[7]
3. Marking or labelling of carry bags made from compostable plastic – The PWM Rules provide for marking and labelling requirements, such as name and certificate number, in case of carry bags made from compostable plastic. However, the Amendment Rules provide that the name and certificate number of the producer shall also be specified in case of carry bags made from compostable plastic.[8]

The marking and labelling requirements to be adhered to by the producer intend to impose an additional burden on such entity for ensuring collection of plastic waste generated through their products.

Conclusion:

On a concluding note, despite the PWM Rules in place since 2016, there is still an absence of systematic efforts in most parts of the country to reduce the risks associated with plastic waste.

With the advent of the Amendment Rules, there is now a more definitive approach for management of plastic waste generated in the country. Attention has been drawn towards the need for appropriate alternatives for single use plastic items and there is now a clear embargo on single use plastic commodities across the country. The additional marking and labelling requirements are all part of the plan to increase obligations and awareness on the multiple stakeholders to the plastic industry.

Entities engaged in business activities relating to plastic or plastic items will be required to decrease and subsequently, eliminate the production, sale, delivery etc, as the case may be, of single-use plastics items and implement different alternatives to packaging. In other words, a significant change in business model of the existing businesses will be required so as to be compliant with the Amendment Rules and avoid the penalties provided therein.

However, it is pertinent to note that though the Ministry intends to make plastic waste management laws uniform across India by way of the Amendment Rules, the position of industries to follow State specific rules is still not clear. Bearing in mind the intention behind the implementation of the Amendment Rules, this is positive development. It remains to be seen how beneficial the law shall be, with the passing of time, especially with regard to industries’ adherence to the spirit of the legislation.

[The authors are Associate and Executive Partner, respectively, in the Corporate and M&A advisory practice at Lakshmikumaran & Sridharan Attorneys, New Delhi]

1. [1] Rule 2(1) of Amendment Rules.
2. [2] Rule 3(na) of Amendment Rules.
3. [3] 2019 SCC OnLine Mad 2308.
4. [4] Rule 3(va) of Amendment Rules.
5. [5] Rule 11(1) of Amendment Rules.
6. [6] Rule 11(1)(a) of Amendment Rules.
7. [7] Rule 11(1)(b) of Amendment Rules.
8. [8] Rule 11(1)(c) of Amendment Rules.