New EU rules on packaging likely to affect IP and brand owners

The legislative proposal for the PPWR was published by the European Commission in November 2022 as part of the European Green Deal and the new Circular Economy Action Plan. The PPWR proposes to revise the current legislative framework for packaging and packaging waste, contained in Regulation (EU) 2019/1020, Directive (EU) 2019/904, and Directive 94/62/EC, with the aim of reducing packaging waste in the EU and promoting a circular economy for packaging.

Following negotiations between the European Parliament (EP) and the European Council, the EP adopted amended wording in April 2024. The European Council has yet to formally adopt the text but it is expected that the Regulation will be adopted and enter into force towards the end of this year.

The draft PPWR includes a wide range of proposals affecting packaging, including requirements around labelling, recyclability, and packaging composition. It also contains packaging minimisation requirements, which will have a particular effect on brand owners who utilise distinctive packaging.

Packaging Minimisation Requirements proposed

Article 10 of the PPWR provides that by 1 January 2030, manufacturers or importers of packaging shall ensure that packaging placed on the EU market is designed so that its weight and volume is reduced to the minimum necessary for ensuring the functionality of the packaging, taking into account the shape and material that the packaging is made of. This applies to all packaging made available for the first time on the EU market by manufacturers, regardless of their location, or by importers based in the EU.

Packaging is defined broadly in the PPWR, and applies to all packaging placed on the EU market, including, for example, packaging for food and drink, cosmetics and toiletries.

Under the new rules, in addition to ensuring that packaging is designed to minimise its weight and volume, manufacturers and importers will not be able to place packaging on the EU market unless it meets the performance criteria listed in Annex IV of the PPWR.

The rules say that packaging design should:

• ensure product protection
• be compatible with the packaging manufacturing and filling processes
• ensure adequate and safe distribution, transport and warehousing of the packaged product
• ensure its functionality
• ensure that any necessary information regarding the packaged product, its use, storage and care, can be provided to users and consumers
• ensure user and consumer safety, as well as product safety and hygiene
• ensure that the packaging and packaged product can comply with applicable law
• ensure reusability, recyclability and inclusion of recycled content as required under the PPWR

Packaging with characteristics that are only aimed at increasing the perceived volume of the product, including double walls, false bottoms, and unnecessary layers, will be prohibited. There is an exception for packaging protected by certain design and trade mark rights, but only in respect of designs and trade marks protected at the time of entry into force of the PPWR. To fall within the scope of the exemption, the packaging must fall within one of the following:

• The design is protected by a community design and national or international design rights having effect within a Member State
• The shape is protected by an EUTM, national or international trade mark having effect within a Member State
• The packaged product or beverage belongs to geographical indications protected under EU law, or is covered by the EU traditional speciality guaranteed quality scheme

Additionally, the new packaging minimisation rules must affect the packaging design in a way that it alters its novelty or its individual character, or the trademark in a way that the trademark is not capable anymore to distinguish the marked good from other products.

Brands should take note of the impact of the proposed packaging minimisation requirements. This is because the requirements may impact a brand’s ability to use distinctive and creative packaging, if the packaging does not fall within the product packaging minimisation criteria, or is not the subject of design or trade mark protection when the PPWR enters into force. It is not clear whether protection will be afforded to designs or marks that are the subject of an application for registration that is still in progress at the time of entry into force of the PPWR. However, brand owners should give consideration to taking steps now to protect their packaging as a registered trade mark or design.  

Other key provisions

Other key provisions in the PPWR include:

• From 1 January 2030, all packaging placed on the EU market must be recyclable. This is subject to limited exceptions, for example, for packaging that comes into direct contact with medicinal and veterinary products.
• Plastic packaging placed on the EU market must contain minimum recycled content.The minimum amount of recycled contact required depends on the type of plastic used, and the minimum amounts will increase on 1 January 2040.
• Packaging labels must contain information in pictogram form on the packaging’s material composition, composability and reusability.Where packaging is reusable, further information on its reusability must be provided, which can be made available through a QR code.
• Manufacturers and importers must indicate their name, registered trade name or registered trade mark, postal address and a means of electronic communication on the packaging, or on a QR code on the packaging or document accompanying the packaged product.
• Certain single use packaging, including single use plastic packaging for fruit and vegetables, food and beverages within a premises in the hotel, restaurant and café and catering sector will be banned from 1 January 2030. Single use packaging for cosmetics, hygiene and toiletry products in the accommodation sector, too.
• From 1 January 2023, the final distributor of alcoholic and non-alcoholic beverages making the products available on the EU market must ensure that at least 10% of the products are made available in reuseable packaging within a system for re-use. There are exceptions for certain types of beverages, for example, highly perishable beverages, milk and milk products, wine and alcohol-based spirituous beverages such as vodka and whiskey.

Conflicts with brand identity and IP rights

The PPWR contains several provisions which have the potential to affect brand owners’ brand identity and IP rights.  In addition to the potential impact that the proposed packaging minimisation rules may have on a brand’s ability to use distinctive and creative packaging, the new rules affecting the composition of packaging may require brands to reconsider the design of their packaging. The new packaging minimisation requirements, coupled with new and existing information and labelling requirements, may impact a brand’s ability to fully exploit use of the packaging itself, for example by reducing the space available for brands to use distinctive slogans, artwork and logos on the packaging. 

Brands should review their packaging

Once the European Council formally adopts the wording of the PPWR, it will be published in the EU’s Official Journal and will enter into force 20 days after publication. The PPWR is a priority for the EU and is expected to be published in the Official Journal by the end of 2024.

In preparation for the entry into force of the PPWR, brands should familiarise themselves with the PPWR and start reviewing their packaging composition and design practices to plan for compliance.