Abstract

Indeed, human civilization has entered a “Plastic Age.” What was once considered a technological marvel is now a threat to our existence. On 2nd March 2022, the United Nations Environment Assembly (UNEA-5) was convened in Nairobi to “End Plastic Pollution” and establish an international statutorily enforceable agreement by 2024. The resolution articulates the entire plastic lifecycle, including production, design, and disposal.

Similarly, anIpsos survey of people in 28 countries on their ‘Attitudes toward single-use plastic’ found that three-quarters of those polled support outlawing single-use plastic in order to promote sustainable development in their countries. According to this survey, BRIC (Brazil, Russia, India, & China) nations have the highest level of agreements on banning single-use plastic, which is at 80%. 

Recently, India has been very active in combating Single-Use Plastic (“S.U.P.”) in the nation. TheMinistry of Environment, Forest and Climate Change (“MoEFCC”) released a notification in August last year stating that the production, import, stocking, distribution, selling, and utilization of identified S.U.P. commodities, such as polystyrene & expanded polystyrene, would be prohibited beginning July 1, 2022. Tons of plastic debris are dumped in landfills or into open oceans, where it degrades into tiny microplastics that end up in marine life/terrestrial animals. They eventually make their way into the human food chain. According toThe Central Pollution Control Board (“CPCB”), India generates approximately 9,200 metric tons of plastic waste per day, which is most likely an underestimation. 

Through this article, the authors hope to gain a holistic understanding of the recent plastic ban and analyze it as a positive step for a country striving for sustainable development and a clean environment.

Background & Terms of the Ban

An amendment was made toPlastic Waste Management Rules, 2016 (“P.W.M.”) via Notification issued by the MoEFCC, namelyG.S.R. 571(E) dated 12.08.2021,G.S.R. 133 (E) dated 16.02.2022, andG.S.R. 522 (E) dated 06.07.2022 (P.W.M. Rules), were listed in the application of powers granted bySections 6, 8, & 25 of the Environment (Protection) Act, 1986, to establish a legal framework for the management of plastic waste across the country.

These Rules result from the Expert Committee formed by theDepartment of Chemicals and Petrochemicals (“DCPC”) and directed by theUnion Ministry of Chemicals and Fertilizers on S.U.P. According to the evaluation, the goal was to limit the circulation of plastic, especially single-use plastic, multi-layered packaging, and the use of throwaway solid cups, trays, and containers with P.V.C. (Polyvinyl chloride) coatings. The Expert Committee found that, although regulatory requirements for limitations on the use of plastic coating in packaging are mainly in place, there is a lack of coordination and inadequate execution of these laws.

As a result, the Committee proposed establishing a sector-specific system to examine and monitor the use of plastics in packaging, as well as enterprises’ commitments within the ‘Extended Producer Responsibility (“E.P.R.”)’ framework, controlling plastic footprints and other relevant concerns. Following the aforesaid developments, the Committee agreed to suggest that materials for food-grade packaging (such as paper-based multilayer wrapping, metal cans, etc.) suited for drinking water be introduced intoIS 14543 &IS 13428.

In furtherance of the assessment of the Committee, the MoEFCC endeavoured to further the recommendations of the Committee and amended theP.W.M. Rules accordingly. The main aim of introducing the Amendment in 2022 was to replace the usage of compostable plastic with biodegradable plastic and elaborate its collection and recycling process. So far, the essence of these Notifications has been to prohibit all commodities that are not biodegradable or recyclable.

The Central Governmentevaluated the current rules to help ensure plastic waste prevention, source separation, recycling, comprising waste pickers, recyclers, as well as waste processors in the gathering of waste plastic fraction either from households or from any other source of its creation or transitional material recovery facility, as well as adoptingpolluter’s pay doctrine for the conservation of the waste management system.

Rule 3(o) of the P.W.M. Rules defines “Plastic as a material that contains an essentially higher component of a polymer such as polyethylene terephthalate, high-density polyethylene, Vinyl, low-density polyethylene, polypropylene, polystyrene resins, multi-materials like acrylonitrile butadiene styrene, polyphenylene oxide, polycarbonate, polybutylene terephthalate.”

MoEFCC, by way of Amendments dated12.08.2021 and06.07.2022 to the P.W.M. Rules, aimed to keep a check on the usage of S.U.P., i.e., items used once for the same purpose before being disposed or recycled, colloquially known as “use and throw items” has endeavoured to replace the same with biodegradable plastic. This has been accomplished by forbidding the manufacture, importation, storage, distribution, as well as the sale of such things. These Notifications will expire ten years after the date of their release(Rule 3), with the exception that they will not be applicable to units that are export-oriented or units that are located in  Special Economic Zones (“SEZ”)s declared by the Central Government that manufacture their goods for export (Rule 4).

As such, the newly introducedRule 4(2) reads as follows:

“The manufacture, import, stocking, distribution, sale, and use of single-use plastic, including polystyrene and expanded polystyrene, commodities shall be prohibited with effect from 1st July 2022-

• Earbuds with plastic sticks, plastic sticks for balloons, plastic flags, candy sticks, ice-cream sticks, polystyrene [Thermocol] for decoration;
• Plates, cups, glasses, cutlery such as forks, spoons, knives, straw, trays, wrapping or packaging films around sweet boxes, invitation cards and cigarette packets, plastic or P.V.C. banners less than 100 microns, stirrer;.”

As previously stated, the freshly alteredRule 4 (2) of the Plastic Waste Management Rules (as amended via Notification dated 12.08.2021) prohibits the use of plates, glasses, packing or wrapping films around sweet boxes, cups, cutlery such as forks, straws, knives, trays, spoons, invitation cards, as well as cigarette packets, stirrers, plastic or P.V.C. banners under 100 microns,  in order to reduce the widespread environmental damage induced by their use.

A Step Ahead towards a Cleaner and Sustainable India

The adopted Amendments have placed the primary responsibility for reducing the production of plastic trash on the producers, who must also ensure that it is not thrown away, ensure that separated waste is stored at the point of origin, and adhere to the Rules by delivering separated waste. The purpose of the Amendment is to create a good ecological balance in the immediate area and to stop stocking, selling, and disseminating S.U.P. that negatively impacts our environment in various ways. The Indian government has made a concerted effort to reduce the use of plastic, and efforts are being made to find the best alternative solution. These Rules also require municipal governments, gram panchayats, trash producers, merchants, and street vendors to handle the plastic waste.

Extended Producer Responsibility

Rule 4 states that the following entities are subject to the Extended Producer Responsibility requirements and provisions of these guidelines: –

• Producer (P) of plastic packaging;
• Importer (I) of all imported plastic wrapping and/or plastic packaging of imported goods;
• Brand Owners (BO) involve digital platforms/marketplaces as well as supermarkets/retail chains that are not micro and small enterprises according to the MSME, Government of India’s criteria;
• Plastic Waste Separators;
• Extended Producer Responsibility Coverage;

With the additions done by the Amendment dated12.08.2021 and06.07.2022, the ban on plastic can be dealt with as under:

1. Rule 4 (1) (a) of the Plastic Waste Management Rules states that “plastic wrapping used during for manufacturing process, distributor stocking, transmission, sale, as well as the use for multi-layered plastic wrapping shall be either in the natural shade, without any added pigments, or produced by only using only those pigments & colorants that conform to Indian Standard”: I.S. 9833:1981, as updated from time to time, titled “List of pigments and colorants that are used in plastics in touch with foodstuffs, medicines, and drinking water.”

2.Rule 4 (1) (b) states that “goods manufactured of recycled Plastic can be used for storing, transporting, distributing, or packaging read, consuming, or drinking foodstuff subject to FSSAI’s notification of suitable rules and regulations within the Food Safety and Standards Act, 2006”.

3.Rule 4 (1) (d) provides that “plastic sheet or like, which is not an integral part of multi-layered packaging and cover made of plastic sheet used for packaging, wrapping the commodities shall not be less than fifty microns in thickness.”

4. Additionally,Rule 4(3) specifies that the restrictions ofRule 4(2)(b) do not extend to items like biodegradable plastic.

These Rules also include provisions for E.P.R. In the classical meaning, it refers to the obligation of producers to handle the disposal of items once those things are no longer viable in the eyes of customers. The primary goal of E.P.R. is to create an effective and efficient system that handles material collection, separation, and transportation to a facility for waste disposal that theMaharashtra Pollution Control Board (“MPCB”) andCPCB recognize as a PRO Agency. Depending on their quality & cost, these resources may be employed in cement kilns & pyrolysis for road building and recycling facilities.CPCB, established under the MoEFCC, Government of India, issues E.P.R. certificates and authorizations.

E.P.R., incorporated through a customized web platform, would act as the system’s virtual spine. The digital platform will allow tracking as well as supervising E.P.R. responsibilities and reduce the regulatory burdens for businesses by allowing for online registration & filing of annual returns. The recommendations outlined a framework for business auditing & corroboration in order to ensure E.P.R. responsibilities are monitored.

Duties of Manufacturers, Importers and Brand Owners

Rule 9 addresses the accountability of Producers, Importers, as well as Brand Owners, stating that within six months of publication, these Manufacturers, Importers, and Brand Owners must work out the modalities for a waste collection system depending on Extended Producer Responsibility and implicating State Urban Development Departments, either collectively or individually, via their channel of distribution or the local body. Producers, importers, and brand owners are also given the primary duty of collecting old multi-layered plastic sachets, pouches or packaging under the Rule (who originate the products in the market). The Rule has made it their primary responsibility to collect the plastic garbage created by their goods.

Rule 9(3) states that the manufacturing and utilization of multi-layered plastics that are non-recyclable, non-energy recoverable, or have no other purpose should be transitioned out in two years. This provision states that multi-layered plastic with no other usage (i.e., a single-use plastic) shall be disposed of within two years.

Rule 10 of the P.W.M. Rules contains provisions relevant to standards of biodegradable plastic, which offers the deciding component of the degree of degradation rate, as well as the disintegration of the, is plastic material.

According to CPCB’sComprehension Action Plan, raw plastic suppliers have been told not to work with firms that produce forbidden goods. On the other hand, companies that manufacture banned S.U.P. goods were expected todecrease their holdings to zero by 30.06.2022.

As a result, any breach of the restriction will result in penal action underSection 15 of the Environment (Protection) Act of 1986. Section 15 punishes for violating the Act’s provisions and the Act’s regulations, orders, and directives, and it goes as follows:

• Anyone who fails to comply with or violates any of the provisions contained in this Act, or the regulations adopted or orders or directives issued thereunder, shall be penalized with imprisonment for a maximum of five years or with a fine not exceeding one lakh rupees, or both. If the failure or violation persists, an additional fine of up to 5,000 rupees may be imposed for each day that the failure or violation remains after the judgment for the first of that kind failure or contravention.
• If the failure or contravention referred to in sub-section (1) continues beyond one year after the date of conviction, the offender shall be imprisoned for a term that may extend to seven years.

Guideline 9 to Rule 9(1), which concerns Intrusion of Environmental Compensation, will be examined to determine the culpability for any breach.

In the rules found in India Standards:I.S. 14534:1998 captioned “Guidelines for recycling of plastics,” these Rules have also made it essential that every plastic carry bag, plastic wrapping, and multi-layered packaging has a mark bearing “recycled.”

Furthermore, the Producers are stopped from using any plastic or multi-layered plastic packaging without proper registration. The requirement of such registration is covered underRule 13 of P.W.M. Rules.

As perRule 5 of Schedule II of the P.W.M. Rules, multi-layered plastic packaging (at least one layer of plastic and at least one layer of material other than plastic) comes under the third category of plastic packaging covered under Extended Producer Responsibility.

Further,Rule 11 provides details of marking and labelling, such as Plastic and multi-layered packaging, which were amended on 06.07.2022.

Clause 10 of Schedule II of said P.W.M. Rules defines the roles of producers, importers, as well as brand owners & states that producers and importers must keep a record of the number of plastic packaging materials made accessible to the brand owner. The Producer and Importer will keep separate records for these types of sales, including the quantity sold by category. They will be required to fulfill the entire E.P.R. obligation if the records are not kept. Such declarations must be cross-checked and updated online by the CPCB/ State Pollution Control Board (“SPCB”).

Clause 15 of Schedule II states that the Manufacturer, Importer, & Brand Owner must provide relevant information of recycling certificates only from registered recyclers, as well as detailed information on quantity sent for end-of-life disposal, by the 30th June of the following fiscal year, when filing their annual return according to Clause 10.6 of Schedule II.

As a result, though it was included in the Expert Committee’s assessment report, multi-layered biodegradable packaging was not prohibited. To combat the consumption of such plastic materials, E.P.R. has now been mademandatory for all manufacturers, importers, brand owners, & processors.

Under thecircular economy model concept, the natural habitat and environment are recovered, materials, as well as goods, are used for as long as possible, and trash is handled sustainably. At the end of the process, resources are not discarded or destroyed; instead, they are recycled, rectified, remanufactured, or reused whilst having value. Plastic trash represents a significant threat to our biodiversity, so we must develop an effective system for managing it if we are to safeguard our resources, protect our environment, & preserve our ecology.

The Stance of Other Countries and International Organizations

According to a 2018 United Nations Environment Programme (“UNEP”) report, many countries have implemented bans and restrictions on single-use plastic waste.

In this regard, theMinistry of Environment in New Zealand decided to enter into avoluntary agreement with the country’s two largest supermarket chains in 2017 to encourage them to start charging for/voluntarily ban single-use carrier bags. Soon after, both chains announced that such bagswould be phased out entirely by the end of 2018.

In Australia, significant supermarketsannounced in 2017 that they would process lightweight plastic bags or provide bags but charge for them to discourage their use. Similarly, Canadian supermarketsannounced in 2016 that they would begin charging for plastic bags to discourage customers from using them. Switzerland’s largest supermarket chains imposed aplastic bag tax in 2016, which the Swiss Parliament accepted as a substitute for a total ban.

Between 2004 and 2016, countries like Spain, Luxembourg, Germany, Thailand, Finland, Austria, and Indonesia implemented various measures to reduce the use of single-use plastic.

In Sweden, however, grocery stores begancharging customers for plastic as well as paper carrier bags in 1970. This ultimately resulted in “better quality plastic carrier bags” as well as a decrease in the market’s use of plastic bags.

Some countries adopted a novel approach to discourage their citizens from using plastic. The Irish government implemented the “PlasTax” on plastic bags in 2002. Within a year of the PlasTax’s implementation, the utilization of plastic bags through Ireland fell bymore than 90%, with consumption per person falling from 328 plastic bags annually to 21 bags. Similarly, the Rwandan governmentprohibited the manufacture, use, sale, as well as importation of all plastic bags in 2008.

Similarly, in 2003, the South African governmentimposed a ban on single-use plastic bags below 30 microns thick and a nominal fee on retailers.

To reduce the production as well as utilization of plastic bags in China, the Chinese governmentimposed a ban on bags slimmer than 25 microns and a tax on thicker bags in 2008. It began to promote the use of long-lasting cloth bags & shopping baskets.

In support of the Governments of the World’s initiative for a greener planet, most nations came forward in thethird session of the United Nations Environment Assembly (UNEA3), having committed to the ambition of a “Pollution Free Planet,” which has ultimately led in many countries attempting to ban plastic as much as possible. The prohibition of single-use plastic could be viewed as a positive step forward.

Conclusion

Bans on single-use plastics are unquestionably a step toward more comprehensive policies aimed at reducing plastic waste generation and substituting S.U.P.s with more self-sustaining, ecological alternatives. Small and medium-sized ‘green’ businesses in India see the ban on single-use plastics as an opportunity to thrive by promoting innovative, environmentally friendly alternatives.

Environment Minister Bhupender Yadavannounced the establishment of control rooms to monitor and ensure that the ban is enforced at the national and state levels. The point of contention is that the ban is not a blanket ban, but instead that its enforcement is at the discretion of the State Government. This is a welcome change, but whether it will be effective in the long run remains to be seen. One can only hope that this initiative receives support from businesses, individuals, and the government, allowing cleaner alternatives to be generated in all spheres of society.

Disclaimer

The views, thoughts, and opinions expressed in the article belong solely to the authors and not necessarily to their employers, organizations, committees, or other groups or individuals to which they are affiliated. 

About the Authors 

Ms. Astha Ojha is a Managing Associate at Luthra and Luthra Law Offices India.

Ms. Parishti Kaushik is a Third-year law student at Gujarat National Law University, and an Associate Editor at IJPIEL. 

Editorial Team 

Managing Editor: Naman Anand 

Editors-in-Chief: Muskaan Singh and Hamna Viriyam 

Senior Editor: Aribba Siddique 

Associate Editor: Parishti Kaushik

Junior Editor: Nupur Barman

Preferred Method of Citation  

Astha Ojha and Parishti Kaushik, “Single-Use Plastic Ban in India- A Step towards Sustainability” (IJPIEL, 9 September 2022) 

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