Change in application of the definition of Producer or Importer as of 1 January 2023.

This applies if company A (the client) instructs company B (the contractor) to manufacture a product and to include packaging featuring the name, logo and/or brand of the client (company A) on it.   

• Situation before January 1st 2023: The contractor pays the Packaging Waste Management Contribution.
• Situation since January 1st 2023: The client, for example the owner of a store brand product, pays the Packaging Waste Management Contribution.

Note! 

1. This pertains to a brand expression on the packaging. If applicable within the reporting unit, all packaging for that product must be attributed to the brand proprietors. 
2. A delivery often also concerns how products are packaged, without any brand expression on the packaging. In such cases, this rule does not apply. Consider, for instance, a different packaging unit, such as 6 bottles in a tray instead of 12 bottles. 

This means that the specification, declaration and corresponding administration are all the responsibility of the brand proprietors, which in practice means that, amongst others, supermarkets and private label holders are personally responsible for filing a declaration about the packaging of their store brands.

If a brand proprietor is not established in the Netherlands, or if there is importation outside the brand propietor's control, the responsibility remains with the importer established in the Netherlands. 

Example 1
You are the proprietor of a private label store brand and tinned sweetcorn is one of your products. You arrange for a producer in the Netherlands to fill the cans with sweetcorn. Previously, your producer was obliged to file a declaration about all the packaging it released on the Dutch market, including your store brand tinned sweetcorn. From 2023, you are personally responsible for declaring your private label packaging and payment of the Packaging Waste Management Contribution to Afvalfonds, and not your producer.

You must obtain all packaging data from your suppliers, including information about grouped packaging and transport packaging.

An item can be composed of various packaging components, some of which may have a brand proprietor and others that may have not. If these components are placed on the market at different points in the chain, it must be determined for each reporting point whether is is a neutral packaging or a brand proprietor packaging. It is irrelevant whether it is known at a reporting point that later in the chain, the packaging will be provided with a brand expression or will be added to packaging with a brand expression.

Example 2
Manufacturer A produces a salad bowl for private label B. The salad contains neutral bags with sauce, croutons, etc., made by manufacturer C. In this case, manufacturer C determines that the bags leave the reporting unit C as a neutral packaging and includes them in the declaration. Manufacturer A received the empty bowl, fills it with salad, adds the bags, and seals it with the private label of B. In this case, manufacturer C is not obligated to make a declaration for this item; it is a private label item. Private label B is then responsible for the salad bowl, excluding the packaging that was declared earlier in the chain: the bags. Therefore, private label B is responsible for the salad bowl, the seal, and all transport packaging. 

This responsibility for the packaging does not apply solely to primary packaging (the packaging directly around the product but also to secondary packaging (grouped packaging such as boxes) or tertiary packaging (transport packaging).

Obtaining the data

It might be a challenge to get hold of the correct data. A producer is required by law to be aware of the materials the packaging has been manufactured from, as well as the weight. Your supplier has the information you need.

Under European law, producers must ensure their packaging satisfies circular criteria as far as possible.  Part of this is knowing what this packaging consists of.

It concerns requirements relating to:

• The promotion of recycling or reuse,
• weight reduction, or reduction in used packaging material and
• applied recycled material.

These requirements are established in EU directive 94/62 and implemented in the Netherlands via the Packing (Management) Decree.

Am I obliged to file a declaration in 2023?

With the shift in definition and corresponding reporting obligation, as a manufacturer (contractor working for a brand proprietor) you are no longer responsible for the declaration of this packaging. Also, you no longer need to file a declaration for the corresponding grouped packaging and transport packaging.

Do you manufacture products featuring your own name, logo and/or brand on it? And is the total weight of this packaging more than 50,000 kilos per calendar year? If so, you are obliged to file a declaration and pay the Packaging Waste Management Contribution.

Do you remain under this weight but release packaging on the market that complies with other legislation such as deposits on drinks bottles or beverage cans or single-use plastic products? If so, you are also obliged to file a declaration. 

Example1
You are a producer of hazelnut spread and have a supermarket chain as a customer. In 2023, you fill 80% of your volume in jars featuring the name, logo and brand of this supermarket. You produce the remaining 20% under your own name. The total packaging weight of your sales is 100,000 kg. The contract terminates in 2024, at which point you decide to promote your own brand more, filling 60% of your production capacity for your own brand and you have a new contract for 20% of your production capacity (20% spare).

The analysis is as follows:

• In 2023, you fill 80% x 100,000 kg = 80,000 kg under private label and 20% x 100,000 kg = 20,000 kg under your own brand. The jars are not covered by different legislation. As a result, you are not obliged to file a declaration.
• In 2024, you fill 20% x 100,000 kg = 20,000 kg under private label and 60% x 100,000 kg = 60,000 kg under your own brand. Given that this is more than the threshold of 50,000 kg in a calendar year, you are once again obliged to file a declaration.

Example 2
You are a producer of bottled waters and soft drinks and have a supermarket chain as a customer. You fill 95% of your volume in plastic bottles featuring the name, logo and brand of this supermarket. You produce the remaining 5% under your own brand. Your sales (in terms of total packaging weight) amount to 500,000 kg.

 The analysis is as follows:

• Up to and including 2022, you are obliged to file a declaration for 100% of the packaging, so 500,000 kg and notify us of this
• The following breakdown applies from 2023:
  • The supermarket chain is responsible for 95% x 500,000 kg = 475,000 kg of packaging.
  • You are responsible for 5% x 500,000 kg = 25,000 kg of packaging.
  • Drinks bottles come under the Decree pertaining to single-use plastic products and also the deposit scheme. No levy-free threshold applies to this packaging. Consequently, you are obliged to contribute towards filing a declaration.

Model Custom Agreement for the transfer of obligations 2023

This new situation may be undesirable for both the brand proprietor and the manufacturer. With the downloadable custom agreement model below, you can take action to address this. Under strict conditions, parties can transfer the contribution obligation back to the manufacturer through a cusom agreement, restoring the situation that applied until January 1, 2023. 

Important

• When signing a custom agreement, all rights and obligations of both Afvalfonds Verpakkingen and Statiegeld Nederland are transferred. 
• When signing the custom agreement, the entire assortment with the brand of the brand proprietor produced by the manufacturer is transferred. 
• The agreement to be signed will be sent using DocuSign. To facilitate this, we kindly request a name and email address from both the producer/importer and the manufacturer via info@afvalfondsverpakkingen.nl.
• Subsequently, both you and the other party will receive an email via DocuSign to digitally complete and sign the custom agreement.
• The duration of the agreement can be filled in independently. Two conditions apply: 1. The contribution can only be transferred for a complete calender year. 2. Transfer is possible for the calender years 2023 through 2027.
• Only after the custom agreement is completed and signed by the "Producer or Importer" and the "Manufacturer", it will be further processed.
• The custom agreement applies to packaging for which the producer/importer has changed as of 2023 and does not apply to (point of sale) packaging for which no change in responsbility has occured. For point of sales packaging, with the name, logo or mark of the producer/importer, a standardized agreement can be used to transfer the contribution obligation to the manufacturer or importer of the empty point of sale packaging. The potential agreed-upon duration currently extends through 2024. The scope of this agreement is linked to the list of point of sale packaging (see below). 

This applies to packaging to be filled or added to a product on the premises at the time of sale. Consider for example bags, pouches, containers, drinking cups, lids or foils.

• Situation up to and including 31 December 2022: The organisation or the company where the point of sale packaging is filled or added pays the Packaging Waste Management Contribution.
• Situation since 1 January 2023: The organisation or the company that produces or imports the point of sale packaging pays the Packaging Waste Management Contribution.

Example 1
You have plastic bags at the checkout in your store. You purchase these from your supplier in the Netherlands.

• Up to and including 31 December 2022, you are obliged to file a relevant declaration and pay the corresponding Packaging Waste Management Contribution.
• From 1 January 2023, the Dutch producer or importer of packaging to be filled or added at the point of sale, these bags for example, is responsible for the declaration and payment of the Packaging Waste Management Contribution. Therefore, you are no longer required to do this from 2023.
  • Do you import the (point of sale) packaging yourself? If so, you remain responsible for specifying this point of sale packaging and pay the Packaging Waste Management Contribution.

Example 2
You are a producer or wholesaler/importer of packaging materials (wrapping). In your range you have, amongst other things, meat trays, foils, drinking cups, lids, food containers, plates and cutlery (the last two are not made of plastic).  

• Up to and including 31 December 2022, you are not obliged to declare these products to Afvalfonds Verpakkingen.
• From 1 January 2023, the obligation to contribute shifts to you but not for all products in your range:
  • the meat trays, foils, drinking cups, lids, food containers and plates constitute packaging and you must file a declaration for these. The cutlery does not constitute packaging. You are not obliged to disclose such.

What is the impact of the changed P/I definition on my administration?

According to the legislation (Packaging Management Decree, 2014), every producer or importer is obliged to minimize the environmental impact of their packaging. This implicitly means that as a PI, you need to be aware of the composition of the packaging for which you are responsible. 

If you produce point of sale packaging, you can retrieve data from your production and raw material records; if you import them, this information can come from your purchasing records. In addition to the quantities of point of sale packaging, we also request you to specify the weight of the packaging materials used. You can obtain these weights from your suppliers. It's good to know that this obligation applies to all EU member states, and requesting such information is not an exceptional favor.

A brand proprietor, as the owner of the brand, will also monitor the quality of the brand and can negotiate agreements with the manufacturer on how the product should be made and/or packaged. If this is not the case in your situation, now is a good time to consult the manufacturer to obtain this information. This could, for example, be contractually documented.