https://www.polity.org.za
Deepening Democracy through Access to Information
Home / Legal Briefs / Webber Wentzel RSS ← Back
Africa|Business|Electrical|Lighting|Packaging|Paper|Services|Waste|Waste Management|Equipment|Packaging|Products|Environmental|Waste
Africa|Business|Electrical|Lighting|Packaging|Paper|Services|Waste|Waste Management|Equipment|Packaging|Products|Environmental|Waste
africa|business|electrical|lighting|packaging-company|paper|services|waste-company|waste-management|equipment|packaging|products|environmental|waste
Close

Email this article

separate emails by commas, maximum limit of 4 addresses

Sponsored by

Close

Article Enquiry

The Extended Producer Responsibility Regulations – Laudable goals, challenging implementation

Close

Embed Video

The Extended Producer Responsibility Regulations – Laudable goals, challenging implementation

The Extended Producer Responsibility Regulations – Laudable goals, challenging implementation

4th June 2021

ARTICLE ENQUIRY      SAVE THIS ARTICLE      EMAIL THIS ARTICLE

Font size: -+

The Extended Producer Responsibility Regulations recently introduced in South Africa are expected to drive the circular economy agenda, but continue to provide legal conundrums and interpretational challenges

Extended Producer Responsibility (EPR) is not a new concept and has found favour and success in international jurisdictions. In South Africa, the recent imposition of the new EPR Regulations and their product sector notices are seen as having the potential to reduce the burden typically placed on municipalities and taxpayers to manage end-of-life product costs; reduce the amount of waste destined for final disposal to landfill; and increase recycling rates. This is all aimed at encouraging and enabling the implementation of circular economy initiatives for problematic product waste streams.

Advertisement

But the recent EPR Regulations and sector notices (applicable to the lighting; electrical and electronic equipment; and paper, packaging and some single-use product sectors) are facing various implementation challenges.

One is navigating the new EPR laws in franchising relationships.  As the market grapples with understanding its obligations under the new EPR laws in the identified product sectors, scope issues continue to create challenges for allocating responsibility for the prescribed EPR measures across the product value chain.  Recently, this issue has become evident in the franchising space. Franchise arrangements typically provide for franchisors to license their know-how, procedures, IP, use of their business model, brand, and rights to sell their branded products and services to an independent franchisee. From a regulatory perspective, however, it is less clear who the brand owner, distributer and producer are for purposes of the EPR Regulations and sector notices.  The implications of the inherent interpretational challenges are significant, and franchisors and franchisees are encouraged to clarify their roles and ascertain whether each or both fall within the scope of "producers", for purposes of compliance with the EPR frameworks.

Advertisement

Another challenge requiring further consideration is the retrospective application of the EPR laws.  In law, there is a presumption against the retrospective application of legislation.  Despite this, regulation 3(2) of the EPR Regulations expressly provides that the regulations apply to the identified products in the sector notices and to the producers of those identified products that were placed on the market prior to these regulations coming into effect. While this provision allows a retrospective scope of application of the EPR Regulations (i.e. to previous and existing waste streams), it must be ascertained whether the implementation of this law is also retrospective (i.e. to the administrative obligations imposed, such as the EPR fees) – presumably it is not.

Finally, a challenge of the downstream obligations imposed on producers and producer responsibility organisations (PROs) is the potential (and perhaps unintended) additional licensing requirements. The EPR Regulations require EPR schemes at least to provide for the re-use, recycling and recovery for beneficial use of identified products and their waste streams.  But the National Environmental Management: Waste Act, 2008 and its 2013 list of waste management activities require that a waste management licence be obtained for re-use / recycling / recovery activities in respect of large (specified) volumes of general or hazardous waste.  This may have implications for the big producers or PROs regulated under the EPR Regulations and sector notices, and industry has not yet considered these implications.

While time will tell, and regulator engagements may be required to inform the implementation of the new EPR laws, we will continue to keep abreast of the challenges in implementing them as they arise.

Written by Garyn Rapson & Paula-Ann Novotny from Webber Wentzel

 

EMAIL THIS ARTICLE      SAVE THIS ARTICLE ARTICLE ENQUIRY

To subscribe email subscriptions@creamermedia.co.za or click here
To advertise email advertising@creamermedia.co.za or click here

Comment Guidelines

About

Polity.org.za is a product of Creamer Media.
www.creamermedia.co.za

Other Creamer Media Products include:
Engineering News
Mining Weekly
Research Channel Africa

Read more

Subscriptions

We offer a variety of subscriptions to our Magazine, Website, PDF Reports and our photo library.

Subscriptions are available via the Creamer Media Store.

View store

Advertise

Advertising on Polity.org.za is an effective way to build and consolidate a company's profile among clients and prospective clients. Email advertising@creamermedia.co.za

View options
Free daily email newsletter Register Now