On 4 November 2024, the Sustainable Waste Management (Extended Producer Responsibility) Regulations, 2024 (the Regulations) were published. The concept of Extended Producer Responsibility (EPR) is a policy approach that places a responsibility on producers for their products throughout their life cycle, including the post-consumer stage¹, from production to end-of-life. This policy attempts to mitigate waste by producers by encouraging that they develop improved product designs; eco-friendly packaging; sustainable waste management and waste generation and treatment.
The Regulations establish EPR Compliance Schemes (individual or collective) and lists certain products that are subject to EPR compliance. An individual EPR compliance scheme is a system where direct execution of the EPR obligations falls on an entity that is a producer of a product, while in collective EPR compliance schemes, producers execute their EPR obligations through a producer responsibility organisation.
Products subject to EPR compliance are those that produce waste that negatively impact the environment, human and animal health due to the challenge they pose on reuse, recyclability, and recoverability; and high management cost of the products at post-consumer stage because of the quantities involved, hazardous nature and risks involved. More specifically, the First Schedule of the Regulations outlines a list of products and packaging that are subject to EPR compliance schemes and the fees they attract per item. They include packaging for non-hazardous products such as cardboard, glass, plastic and aluminium; packaging for hazardous products like industrial chemicals, treated wood and agricultural films; electrical and electronic equipment, mercury auto switches, thermostats, battery and accumulators; end of life motor vehicles; and non-packaging items such as rubber, sanitary towels and diapers among others.
Registration Obligations and Compliance
All producers are required to register for certification with the National Environment Management Authority (NEMA/ the Authority) and set up either an individual or collective compliance schemes, which also ought to be registered. Prior to registration, every individual or collective compliance scheme should develop and submit to the Authority a four year EPR plan. Producers already in operation before the commencement of the Regulations have a period of six months to apply for registration (up to May 2025). Upon successful registration, all producers, either individually, or through a collective scheme, will be required to take out annual operating licences.
Certification of both collective and individual EPR compliance schemes by NEMA will operate for a maximum period of four years, which shall be renewable, subject to certain conditions. Certification can be revoked for failure to comply with statutory requirements, and for collective schemes, the failure to meet the national targets set out in the EPR agreement entered by the parties.
Importers are also obliged to apply to NEMA for an EPR certificate at the point of import and are required to pay the fees prescribed for products in the first schedule in relation to any products they wish to import. Upon approval, such certification shall form part of the mandatory clearance and inspection documentation.
The Regulations also outline critical producer obligations, which include, developing a four year EPR plan; designing products and packaging materials that minimise waste, facilitate reuse, recycling, recovery and use of secondary raw materials where possible and are environmentally friendly at their end of life; to enhance environmental sustainability by carrying out product life cycle assessments; taking financial, organisational and physical responsibility for the management, treatment and disposal of their post-consumer products and end-of-life treatment for waste; and submitting annual reports to the Authority.
While collective EPR compliance schemes can execute these obligations on behalf of their members, the Regulations stipulate specific responsibilities for collective schemes including undertaking market development for secondary raw materials market of their products; and establishing research and development programs on emerging technologies to improve material recovery, removal of pollutants and effective systems for handling post-consumer products.
As an enforcement measure, the Regulations prescribe that wilful failure to undertake any statutory obligations constitutes an offence, which upon conviction, the court shall order the producer to bear the cost of management of the said obligation. Additionally, it is an offence to give misleading or false information on quantities held or managed under an EPR scheme or to introduce a product in the market on behalf of a producer who is not registered. Lastly, a free rider, a producer who is not part of a collective scheme, and a producer who fails to fulfil their individual obligations commits an offence. Free riders are individuals or entities that do not contribute to a collective scheme but benefit from its existence and action, including a producer who fails to manage their products at the post-consumer stage; or producers who under declare their volumes, fail to demonstrate fulfilment of individual extended producer responsibility obligations, producers in a pooled scheme who fail to pay their subscriptions, submit accurate information or fulfil their membership requirements.
Key Observations and Recommendations
Producers and importers ought to ensure compliance with the Regulations by registering, obtaining approval and complying with the measures and obligations put in place. They need to develop a comprehensive EPR plan that will capture, among others, national targets for reuse, recycling or recovery operations and end of life management as well as an eco-design standard operating procedure. Producers should also embrace circular economy initiatives and measures that reduce the impact of their products on health and environment.
These Regulations are also likely to have significant cost impact on producers and importers, which will inevitably translate to high cost of commodities for consumers. This will therefore necessitate an analysis of these Regulations in relation to consumer protection laws, competition laws and socio-economic protections.
Lastly, NEMA has a very pivotal regulatory role in ensuring that these Regulations bear fruit in the quest of sustainable waste management and consequently a robust compliance and enforcement mechanism ought to be maintained. It is also important that consumer awareness is facilitated so that consumers play a beneficial part in sustainable waste management.
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Read the original publication at Clyde & Co.
