The Italian Legislative Decree 196/2021 (“Italian Decree”) implementing the Single-Use Plastic Directive (“SUPD”) will enter into force on January 14, 2022.  The Italian Decree diverges from the SUPD on significant aspects: it provides a more flexible definition of plastic; delays the entry into force of the ban on prohibited SUPs; and exempts from such ban specific biodegradable and compostable materials.  The Decree also imposes specific return obligations on waste plastic bottles. While the Italian Decree provides companies with additional flexibilities to market their SUPs in Italy, companies should carefully assess the risks that may arise if EU Courts finally hold that the Decree is not compatible with EU law.

The Definition of Plastic

Article 3(1)(a) of the Italian Decree follows the definition of “plastic” of the SUPD with one important difference:  it explicitly excludes from the definition 󠄰“materials such as paints, inks, adhesives, and plastic coatings, weighing less than 10% of the total weight of the product, which are not the main structural component of the finished products” (emphasis added).

The Italian definition also does not follow the interpretation of the SUPD’s definition of plastic reflected in the European Commission’s Interpretative Guidelines (“Commission Guidelines”).  The Commission Guidelines confirm that Recital 11 of the SUPD excludes from the concept of “products made partly of plastic” those materials to which “paints, inks and adhesives” are applied.  However, the Guidelines also make clear that materials (e.g., paper and cardboard) with plastic coatings and lining are plastic materials or materials partly made of plastic and are subject to the SUPD’s requirements and restrictions.  Neither the SUPD’s definition of plastic nor the Commission’s Guidelines provide any exemption on the basis of a weight threshold.

A Delayed Entry Into Force of the Ban on Prohibited Single-Use Plastic Products

The Italian Decree also provides for a delayed introduction of the ban on SUPs listed in Part B of the Annex to the SUPD (e.g., cotton buds, cutlery, plates, etc.).

Article 5(1) of the Italian Decree mirrors Article 5 of the SUPD and prohibits the placing on the market of the SUPs listed in Part B of the Annex to the SUPD.  However, Article 5(2) of the Decree also provides that the SUPs listed in Part B of the Annex may still be made available on the Italian national market “until stocks are exhausted, provided that it can be demonstrated that they were placed on the market before the date of the entry into force of the obligation referred to in paragraph 1” (emphasis added).

Presumably, the concept of placing on the market of Article 5(2) refers to the Italian national market, and not to the EU market, in line with the SUPD.  Nevertheless, Article 5(2) indicates that all SUPs listed under Part B of the Annex that were already on the Italian market by January 14, 2022, may continue to be sold through the supply chain in Italy even if the SUPD’s ban applies since July 2021.

An Italian Exemption for Biodegradable and Compostable Single-Use Plastic Products

Contrary to the SUPD, Article 5(3) of the Italian Decree provides an exemption from the ban for single-use plastic products that are biodegradable or compostable and are listed in Part B of the Annex to the SUPD.  In particular, it exempts from the prohibition of Article 5(1) biodegradable and compostable materials certified in accordance with technical standard UNI EN 13432 or UNI EN 14995, with a percentage of renewable raw material of at least 40% (60% from January 1, 2024), if any of the following alternative conditions are met:

1. It is not possible to use reusable alternatives to SUP food contact products listed in Part B of the Annex;
2. The use takes place in controlled environments, which ordinarily and constantly deliver waste to public collection services, e.g., canteens and health facilities;
3. Alternatives do not provide adequate guarantee in terms of hygiene and safety due to the specific circumstances of time and place;
4. If the SUP is used for particular types of food or drink;
5. The particular circumstances involve a multitude of people; or
6. The environmental impact of the single-use alternatives is worse than the impact of the bio-based and compostable material, based on a lifecycle analysis by the manufacturer.

Arguably, the Italian Government would be justifying the exemptions of Article 5(3) on the basis of Article 11 of the SUPD, which requires Member States to ensure that their implementation of the SUPD does not compromise food safety.  However, it is questionable whether the European Commission will agree with such interpretation, in particular considering that the Commission has repeatedly said that the definition of plastic also covers “bio-based and biodegradable plastics regardless of whether they are derived from biomass or are intended to biodegrade over time.”

Thus, there is a risk that the European Commission may start an infringement procedure against Italy or that the EU Courts may otherwise hold that the Italian Decree’s definition of plastics and its flexible exemptions for specific SUPs are not compatible with EU law.  In effect, this would also have significant commercial consequences for those companies that relied on the flexible approach of the Italian Decree.

The Return Systems for Single-Use Plastic Bottles

Finally, Article 6(5) of the Italian Decree also requires that producers and their extended producer responsibility systems ensure that the post-consumer material [waste] of beverage bottles (with a capacity of up to 3 liters, including their caps and lids) listed in Part F of the Annex to the SUPD be collected and retuned back to their original manufacturers.