09 September 2021

Labelling of packaging: clarifying the Legislative Decree No. 116

On 11 September 2020, Legislative Decree No. 116 of 03/09/2020 came into force, creating confusion among consumers and producers regarding the labelling of packaging.

We would like to try to clarify the main points of the decree:

• Packaging intended for the B2B channel is subject to mandatory alphanumeric coding.
• For neutral packaging used in the B2B channel, it is sufficient for the alphanumeric code to be shown on the transport documents.
• The labelling obligation for the B2C channel for proper waste collection is suspended until 31 December 2021.
• These regulations are only valid and mandatory for packaging produced in or imported into Italy.

Let’s look specifically at the paragraphs of the Decree for the labelling of packaging:

Legislative Decree 116/2020 transposes Directive (EU) 2018/851 on waste and Directive (EU) 2018/852 on packaging and packaging waste and amends Legislative Decree 152/2006 (Environmental Consolidation Act).

In particular, the first paragraph of art.5 addresses exclusively the B2C channel. The entry into force of the same has been extended to 01 January 2022 through DL n.183 of 31/12/2020 (Milleproroghe).

“All packaging must be appropriately labelled in accordance with the methods established by the applicable UNI technical standards and in accordance with the determinations adopted by the Commission of the European Union, in order to facilitate the collection, reuse, recovery and recycling of packaging, as well as to give correct information to consumers on the final destinations of packaging. …”

The second paragraph is valid for both B2C and B2B channels. There is no extension concerning the entry into force.

“…Producers shall also be obliged to indicate, for the purpose of identifying and classifying packaging, the nature of the packaging materials used, on the basis of Commission Decision 97/129/EC.”

Decision 97/129/EC also indicates the applicable mandatory numbering system and abbreviations.

It is important to emphasise that this is not a product regulation but an end-of-life regulation for packaging: the legislator’s aim was to guide the consumer towards the correct recovery of the packaging itself.

What is the compulsory coding applicable to packaging materials?

The compulsory codification applicable is exclusively the alphanumeric one provided for by Decision 97/129/EC.

According to the regulatory text, the obligation of codification of materials is expressly in charge of producers, as defined by art.218, c.1, letter r), of Legislative Decree 152/06 “suppliers of packaging materials, manufacturers and importers of empty and packaging materials”.

The alphanumeric coding should be provided for all manually separable components of the packaging system (e.g. bottle cap); when this is not possible, according to CONAI guidelines, the labels can be affixed on the main body of the packaging system, on the label or on another component that allows an easy vision of the information by the final consumer.

With regard to composite packaging, i.e. packaging made up of different materials that cannot be separated manually, there are two cases:

– Weight of secondary material > 5% w/w – the applicable coding is indicated in Annex VII, depending on the family of material prevailing by weight and the secondary material(s);

– Weight of material < 5% w/w – the packaging is considered mono-material so Annexes I to VI apply.

A number of voluntary labelling schemes, such as CEN REPORT CR 14311:2013 or ASTM (RIC), overlap with this mandatory coding system. Misapplication of the symbols provided for by the voluntary labelling systems can be considered as greenwashing and therefore sanctioned as misleading advertising.

We would like to point out that CONAI has made available a portal to help the producer in the correct coding of the packaging, click here to connect to the platform.

 

What are the sanctions if the correct labelling of packaging is not complied with?

Article 261, paragraph 3 of Legislative Decree 152/2006 provides for a sanctioning discipline applicable to anyone who puts packaging on the market without the requirements, whether the subject is a producer, a distributor or a user along the chain.

“A pecuniary administrative sanction ranging from 5,200 to 40,000 euros shall apply to anyone who places packaging on the market without the labelling requirements.”

It should be noted that the penalty, being of an administrative nature, is not a lump sum but can be multiplied by the number of non-compliant packages detected; For example, if the supervisory body (which has not yet been identified) were to detect 1,000 non-conforming packages of product A and 1,000 non-conforming packages of product B, there would not be one penalty for product A and one for product B, but it would be multiplied by the 2,000 non-conforming packages.

Does the regulation also apply abroad?

No, Legislative Decree 116/2020 only applies to packaging released for consumption in Italy.

Has a transitional period been foreseen for the disposal of stocks?

Law no. 69 of 21/05/2021 provided for the suspension until 31/12/2021 of art. 219 paragraph 5 of Legislative Decree no. 152 of 03/04/2006 and the marketing of non-coded packaging until stocks are exhausted.

In the case of neutral packaging, where must the codification be indicated?

MITE (Ministry of Ecological Transition) published circular no. 0052445 on 17/05/2021, which clarifies that, for neutral packaging, “the obligation to identify the material of which the packaging is made is considered fulfilled if the manufacturer includes this information on the transport documents accompanying the goods, or on other external components, including digital ones.”