Plastic single-use cutlery guidance

Guidance on who may supply and access plastic single-use cutlery, for how long, and under what circumstances.

From 1 November 2022, the supply of certain plastic items including plastic single-use cutlery is banned in NSW. This means that it is an offence to supply plastic single-use cutlery while carrying on a business in NSW, except as set out in the Plastic Single-Use Cutlery Exemption 2022.

Until 31 October 2024, plastic single-use cutlery can continue to be supplied to certain ‘exempt facilities’ (such as correctional and mental health facilities) where its use is required to help prevent violence, injury or harm, subject to the conditions of the exemption.

Until 31 October 2023, plastic single-use cutlery can continue to be supplied at public hospitals in exceptional or emergency situations when they are prevented from using alternative cutlery, unless the hospital is an ‘exempt public hospital’, subject to the conditions of the exemption. This temporary exemption is a result of feedback from HealthShare NSW, as outlined in the ‘public hospitals’ tab below.

The ‘exempt facilities’ exemption will end on 31 October 2024, while the ‘public hospitals’ exemption will end on 31 October 2023. This is unless the exemptions are varied or revoked earlier by the EPA (for example if suitable alternatives for all stakeholders become available and are transitioned to prior to these dates). 

Plastic single-use cutlery can be supplied before 1 November 2024 in the following circumstances:

  • the supply is to, by or at an exempt facility where the use of plastic single-use cutlery is required to help prevent violence, injury or harm, or
  • the supply is to enable the on-supply to an exempt facility that requires plastic single-use cutlery to help prevent violence, injury or harm (e.g. supply from a manufacturer to a distributor who then supplies to an exempt facility).

The supply of plastic single-use cutlery at an exempt facility must be free of charge.

While any supplier may supply plastic single-use cutlery in the circumstances set out above, certain types of suppliers have additional obligations.

If you are a manufacturer, producer or wholesaler (including, for example, a distributor), you may only supply plastic single-use cutlery if you have undertaken due diligence to confirm that the supply of the cutlery is permitted in the circumstances, as set out above.

Exempt facilities

An ‘exempt facility’ means a:

  • facility at which a person may be detained or held in custody according to law, such as a:
    • correctional centre (including police or court holding cells), correctional complex, residential facility or transitional centre as defined in the Crimes (Administration of Sentences) Act 1999, and
    • detention centre as defined in the Children (Detention Centres) Act 1987
  • mental health facility as defined in the Mental Health Act 2007
  • public or private hospital, being only those areas used to provide professional health care services to people admitted as in-patients, or to patients in an emergency department, including:
    • ancillary accommodation facilities for persons receiving health care, and
    • by way of example, the areas of a multipurpose service where people are admitted as in-patients or present in an emergency department, but
    • excluding hospital cafeterias and gift shops.
  • residential aged care facility (being a facility at which residential care, as defined in the Aged Care Act 1997 of the Commonwealth, is provided)
  • residential care facility as defined in the Standard Instrument (Local Environmental Plans) Order 2006, such as accommodation for people with disability that includes meals and care, and
  • group home as defined in the Standard Instrument (Local Environmental Plans) Order 2006, such as drug or alcohol rehabilitation centres with temporary accommodation services.

Required to help prevent violence, injury or harm

Plastic single-use cutlery can only be supplied where its use is required to help prevent violence, injury or harm.

An exempt facility must not supply it where it would merely be convenient – for example, to all patients in a general ward of a hospital, all residents in an aged care facility, or for purposes such as infection prevention and control (suitable alternatives are available for these purposes).

In determining whether use of plastic single-use cutlery is required to help prevent violence, injury or harm, the EPA expects the focus to be on the behaviour of the individuals at exempt facilities and the ability of alternatives to plastic single-use cutlery to be weaponised.

Examples of where use of plastic single-use cutlery may be required to help prevent violence, injury or harm at an exempt facility include during food service where individuals might engage in behaviour that is likely to cause violence, injury or harm, including by using, or threatening to use, alternatives to plastic single-use cutlery as weapons to cause injury to themselves or others.

The EPA anticipates that an exempt facility’s use of plastic single-use cutlery would be based on risk assessments regarding the likelihood and severity of violence, injury or harm occurring should alternatives to plastic single-use cutlery be supplied.

Due diligence

Due diligence involves having mechanisms in place to confirm that the supply is permitted in the circumstances, before supplying the items. Examples of due diligence may include:

  • requiring a declaration or confirmation via email that the recipient is an exempt facility that requires the use of plastic single-use cutlery to help prevent violence, injury or harm, or is receiving the cutlery to enable the on-supply to an exempt facility that requires the use of plastic single-use cutlery to help prevent violence, injury or harm
  • undertaking checks of the organisation to ascertain whether they are an exempt facility, or are the type of organisation that would be on-supplying to an exempt facility (such as a wholesaler to a correctional centre).

You should also consider whether any further inquiries or measures are necessary in the circumstances.

Plastic single-use cutlery can be supplied before 1 November 2023 in the following circumstances:

  • the supply is to, by or at a public hospital (e.g. supply from a nurse or food service worker to a patient in a ward), or
  • the supply is to enable the on-supply to a public hospital (e.g. supply from a manufacturer to a distributor who then supplies to a public hospital).

Unless a hospital is an exempt public hospital, plastic single-use cutlery may only be supplied at a public hospital in exceptional or emergency circumstances when they are prevented from using alternative cutlery (such as metal cutlery).

The EPA anticipates that the situations in which a public hospital is prevented from using alternative cutlery would be rare and limited. The EPA expects that a public hospital would only supply plastic single-use cutlery as a last resort, and for a limited time, where they were absolutely unable to use sustainable alternative cutlery.

The supply of plastic single-use cutlery at an exempt public hospital or public hospital must be free of charge.

While any supplier may supply plastic single-use cutlery in the circumstances set out above, certain types of suppliers have additional obligations.

If you are a manufacturer, producer or wholesaler (including, for example, a distributor), you may only supply plastic single-use cutlery if you have undertaken due diligence to confirm that the supply of the cutlery is permitted in the circumstances, as set out above.

The EPA has granted a temporary 12-month exemption for the supply of plastic single-use cutlery for 10 public hospitals following consultation with HealthShare NSW that:

  • certain disposable alternatives are currently not considered fit-for-purpose as they may pose a safety risk to patients, and
  • 10 public hospitals do not currently have the necessary kitchen infrastructure to be able to wash and supply alternatives such as metal cutlery.

Noting pressures on the healthcare system induced by the Covid-19 pandemic, the temporary exemption will provide more time for the 10 public hospitals to upgrade their kitchen infrastructure and transition to alternatives, which HealthShare has advised will occur within 12 months.

The EPA has also granted a temporary 12-month exemption for the supply of plastic single-use cutlery at all public hospitals but only in an emergency or exceptional circumstances where these hospitals are prevented from using alternative cutlery (such as metal cutlery). This follows consultation with HealthShare NSW that certain disposable alternatives are not currently considered fit-for-purpose for safety reasons.

The EPA may revoke this exemption earlier if the upgrades and transition for the 10 public hospitals occur before 31 October 2023, and/or if suitable disposable alternatives become available and are transitioned to for all public hospitals before 31 October 2023.

Exempt public hospitals

An ‘exempt public hospital’ means any of the following public hospitals:

  • Blacktown Hospital
  • Campbelltown Hospital
  • Liverpool Hospital
  • Nepean Hospital
  • Prince of Wales Hospital
  • Royal Hospital for Women
  • St George Hospital
  • Sutherland Hospital
  • Sydney Children’s Hospital
  • Westmead Hospital

where ‘public hospital’ has the same meaning as in the Health Services Act 1997 (NSW).

Public hospitals

A ‘public hospital’ means a public hospital as defined in the Health Services Act 1997 (NSW). This means:

  • a hospital controlled by a local health district, a statutory health corporation or the Crown
  • a hospital that is a recognised establishment of an affiliated health organisation (see Schedule 3 of the Health Services Act 1997).

Due diligence

Due diligence involves having mechanisms in place to confirm that the supply is permitted in the circumstances, before supplying the items. Examples of due diligence may include:

  • requiring a declaration or confirmation via email that the recipient is a public hospital, or is receiving the cutlery to enable the on-supply to a public hospital
  • undertaking checks of the organisation to ascertain whether they are a public hospital, or are the type of organisation that would be on-supplying to a public hospital (such as a wholesaler to the medical industry).

You should also consider whether any further inquiries or measures are necessary in the circumstances.