Duncan Reed is a commercial associate at UK law firm TLT.
From what date is the 5p plastic bag charge a legal requirement?
From October 5, 2015.
Who does the requirement apply to?
The obligation to charge for single-use plastic carrier bags will be mandatory for organisations who:
· employ 250 or more full-time equivalent employees; and
· sell or deliver goods in England (separate regulations already apply in Scotland and Wales)
Does the requirement apply to all carrier bags?
No, organisations will only have to charge for carrier bags which:
· are plastic and are a maximum of 70 microns thick;
· are unused; and
· have handles.
Are there any exceptions to the new charging requirement?
Yes, there will be no requirement to charge for bags that are provided for certain items including certain uncooked or unwrapped food products, prescription medicines and live aquatic creatures (an exhaustive list can be found within schedule 2 of the Single Use Carrier Bags Charges (England) Order 2015).
However, if the bag is provided to contain other items as well which are not contained within the list of items for which bags can be provided for free, then the retailer must still charge for the carrier bag.
The 5p charging requirement will not apply to re-usable bags (often referred to as bags for life), however these must meet certain requirements with regards to thickness and must initially be sold for a minimum of 5p in any event. Re-usable bags must also be replaced free of charge if returned by a consumer.
There is currently no exception for biodegradable bags.
Are there any other requirements?
Yes, organisations will be required to keep a record of the number of bags that are supplied, what proceeds have been made from the charges (including details of any VAT paid) and how those proceeds have been spent. Organisations are also required to provide records of the ‘reasonable costs’ incurred in implementing the charges.
Records will be made open to the public by government department Defra and members of the public will also be permitted to request copies of an organisation’s records.
What do retailers need to spend the proceeds on?
According to the government guidance, once reasonable costs have been deducted from the proceeds the remainder is ‘expected’ to go to ‘good causes’. That said, The Single Use Carrier Bags Charges (England) Order 2015 does not impose a legal duty on organisations to spend the net proceeds in a particular way. It is anticipated that the proceeds will largely be used for environmental causes.
What are the consequences of failing to meet the new charging requirement?
The charging requirement will be monitored by the relevant local authority in the area that the store is located. Local authorities will have the ability to fine organisations for non-compliance with the regulations and make this information publically available.