Extended Producer Responsibility (“EPR”) is an environmental policy approach in which a producer’s responsibility for a product is extended to the post-consumer stage of the product’s life cycle. In practical terms, EPR extends the responsibility of producers beyond the point where their liability for waste would traditionally end, namely upon sale of their product to its end user. EPR aims to shift physical and economic environmental responsibility upstream away from municipalities and towards producers in part or in whole through the provision of incentives which motivate them to consider environmental impact when designing their products. In contrast to other policy instruments, which tend to target a single point in the production chain, EPR seeks to integrate signals related to the environmental characteristics of products and production processes throughout the entire chain.

On 5 November 2020, the Department of Forestry, Fisheries, and the Environment (“DFFE”) published the Extended Producer Responsibility Regulations for electronic and electrical waste (“EEE”), lighting, paper, and packaging sectors (the “EPR Regulations”). On 5 May 2021, these Regulations came into effect under Government Notice No. 1184 in Government Gazette 43879, bringing with them significant ramifications for all producers, brand owners, importers, distributors, and retailers within these sectors.

The precise meaning of ‘Producer’ as defined in the EPR Regulations is drafted in such a way as to leave room for a wide interpretation of what and who a ‘Producer’ is. Regulation 4(1) of the EPR Regulations requires all existing producers of identified products to register with the DFFE through the South African Waste Information Centre (“SAWIC”) and then register with a Producer Responsibility Organization (“PRO”) or create their own within six months of the publication of the notice. This period expired after 5 November 2021.

In simple terms, if the answer to any of the following questions is affirmative, then you are an EPR Producer for purposes of the Regulations:

  1. Do you import EEE, packaging, lighting & portable batteries products on a professional basis into South Africa?
  2. Do you manufacture and sell EEE, packaging, lighting & portable batteries products under your own brand?
  3. Do you, under your own brand, refurbish or resell EEE, packaging, lighting & portable batteries products that are produced by other suppliers?
  4. Do you sell EEE, packaging, lighting & portable batteries products via distant communication (such as the internet, phone, or catalogue) to consumers and businesses in SA but are based outside SA?

The EPR Regulations place a number of obligations on Producers. A ‘Brand Owner’ is also defined in the EPR Regulations but is included in the definition of Producers. There are no separate obligations which would only be applicable to a Brand Owner. There are different ‘identified products’ in respect of which specific regulations relating to those identified products have been promulgated, being the electrical and electronic equipment sector, the lighting sector, the paper packaging sector and some single-use products. For each of these sectors, however, there have been different levels of engagement within the related sectors of the economy. Accordingly, the sectors which have experienced a low level of engagement are less certain about how the regulations will impact them.

The EPR Regulations require Producers to report to an applicable PRO with the quantities of identified products placed on the market to enable the PRO to comply with its reporting obligations in terms of Regulation 5A(1)(j). In addition, Producers must comply with the requirements for payment of the extended producer responsibility fee as such fee is determined by the PRO (Regulation 5A(1)). However, subject to certain statutory limitations, the manner in which this fee must be administered by the PRO is left up to them, and how duplication of reporting by Producers in a supply chain will be managed will need to be carefully dealt with by such organizations. Privacy concerns between members of each organization and the organization itself will also need to be robustly addressed.

Considering it is not the primary objective of businesses generally to manage their environmental impact but to conduct business, and although producers are entitled to create their own PROs, given the complex intricacies of EPR compliance, stringent reporting requirements, the required background knowledge regarding the DFFE’s internal procedures, and the novelty of the EPR regulations, it is advisable for producers to register with an existing PRO. Through association with an organization whose primary business is EPR compliance, which is part of an established network of compliant producers, and whose experience and placement within the industry afford them a unique advantage, producers will be able to focus on their core business and will reap the benefits of becoming compliant timeously and voluntarily.

The Department has indicated that it will be treating as an offence a failure to register with it in terms of Regulation 4(1) of the EPR Regulations, for which penalties include fines and imprisonment for a period not exceeding 15 years. Furthermore, in July 2022, a Letter of Concurrence was issued by the Minister of the DFFE imposing EPR levies; the rates which PROs charge their clients. However, these levies were backdated to 1 January 2022, leading to several issues regarding how producers can clear the backlog of payments and become compliant.

Although it is clear that at this early stage, many market participants do not take EPR, the EPR Regulations, nor their enforcement seriously, and although ignoring the implications thereof may seem a tenable and attractive option, the Department has indicated that such an attitude will not go unpunished and will result in severe consequences further down the line.

If you have any queries regarding the EPR Regulations, please give us a call and we will gladly assist you.