Guidelines SUP Directive of the European Union contradict several policy objectives and principles
GO!PHA expresses serious concerns as the latest version of the “draft Guidelines” seriously hampers the market potential of PHA in the European Union (EU)
We believe that the inclusion of PHA in the Guidelines of the SUP Directive seriously undermines the potential of PHA to become a sustainable substitute for many single use applications where fossil fuel-based plastics are currently used. This not only contradicts several EU policy objectives and principles but would also distort trade in violation of WTO rules and put into jeopardy investments made in PHA development and commercialization through various EU and national funds.
The Innovation Principle: PHA is one of the most innovative and versatile materials known to man that is naturally found, uses renewable sources including waste carbon sources for their production, biodegrades in soil, fresh water and in marine environment, just like cellulose which is exempt from the Guidelines. The EU has sponsored over 110 Million Euros worth of research and innovation projects to valorise waste carbon sources into PHA for packaging including single use plastics. Significant public investment has also been made via various Member State Funds. The EU Innovation Principle strives to ensure that legislation is designed to create conditions conducive for innovation to flourish and to achieve a balance between predictability of the regulatory environment and adaptability to scientific and technological progress. This unfortunately will not be the case for PHA as per the current Guideline.
Green Deal Objectives: Recently the EU has announced a major push into more sustainable and a circular economy through the Green Deal. Some of its guiding principles include the use of renewable resources, valorising waste, biodegradable materials and waste reduction. New technologies, sustainable solutions and disruptive innovation are highlighted as “critical” to achieve the objectives of the European Green Deal. Bringing PHA, a renewable, sustainable and biodegradable material within the Directive goes against these objectives and the green oath to ‘do no harm’. There is a great potential to use biowaste as a raw material for PHA.
Apart from the Green Deal push, restricting PHA contradicts other EU initiatives. The latest Circular Economy Action Plan pledged to address emerging sustainability challenges by developing a policy framework on the use of biodegradable or compostable plastics where they can be beneficial to the environment. Moreover, in its 2018 Plastics Strategy the Commission pointed at the opportunities offered by alternative feedstocks such as bio-based plastics and welcomed innovation efforts in biodegradable plastics. The inclusion of PHA hampers the effectiveness of these initiatives.
Market Distortion: By including PHA in the Guideline and exempting cellulose, the market for new and innovative materials will be distorted. Both products have similar properties in use as well at end of life, they can act as substitutes for each other and they both complement each other in numerous ways in many uses in single use plastic products and elsewhere.
Trade Distortion: Including PHA within the scope of Directive (EU) 2019/904 would violate Article III(4) of the WTO’s General Agreement on Tariffs and Trade (“GATT”) and Article 2(1) of the Agreement on Technical Barriers to Trade (“TBT Agreement”). Moreover, as there is no legitimate basis to treat PHA as more environmentally damaging than cellulose products, the less favourable treatment of PHA would also not be justifiable under the exemption for environmental protection under Article XX of the GATT or the “legitimate regulatory distinction” test of the WTO’s TBT jurisprudence.
For all the reasons outlined above, we strongly believe that the Guidelines as currently drafted do not fit within the intent and the spirit of the Directive (EU) 2019/904. We also believe that the Guideline as written would breach fundamental policy objectives and principles of EU and WTO rules. Therefore, we request that the Commission take the following measures regarding the Guidelines:
1. Ensure that the Guideline reflect that polymers that are the result of a fermentation process and having the same chemical identity as polymers present in nature are considered to be ‘natural polymers’ within the Single-use plastic directive (EU) 2019/904.
2. Ensure that the Guideline of the Directive (EU) 2019/904 do not harm market potential of PHA in manner that would seriously damage the investments made and planned through EU and national funds.