Container compliance deadline 2019

1 December 2019 – end of transition period

To minimise initial disruption to businesses resulting from the introduction of Return and Earn, a two-year transition period is in place until 1 December 2019. The transition period was established to give suppliers two years to make the necessary changes to cans, labels and barcodes to comply with the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (the Regulation).

From 1 December 2019 all containers supplied in NSW must be compliant with the Regulation by

  1. Showing the NSW refund marking
  2. Complying with the barcode requirement
  3. Not using a prohibited (ring-pull) lid

In addition, all container approval holders must ensure that by 1 December 2019 the details of their container approvals are recorded correctly (and updated if necessary) in the NSW CDS Container Approval Portal.

After 1 December 2019, active compliance measures may be pursued by the EPA where necessary to ensure that all registered containers meet the legislated requirements.

More information on each of these requirements is available in the downloadable fact sheets: supplier obligations (PDF 123KB) and retailer obligations (PDF 162KB)

NSW refund mark

The Regulation prescribes that from 1 December 2019 the marking or labelling for a container must contain the words “10c refund at collection depots/points in participating State/Territory of purchase” in clear and legible characters. For example

containers showing NSW refund mark

The refund marking applies at all points in the supply chain and all suppliers and retailers in NSW are liable for ensuring that the containers they supply showthe correct refund marking in accordance with the Regulation. The correct refund marking can be included on the product label or be printed/placed directly onto containers.

Temporary measures such as refund marking stickers may be used if needed, at the supplier’s cost.

Barcode requirement

It is a condition of each container approval that from 1 December 2019 containers supplied into NSW comply with the barcode requirement. A compliant barcode is a GTIN barcode unique to that class of containers. Please refer to the Regulation for the complete barcode requirement. From 1 December 2019, Container Approval Holders must not supply eligible containers that do not meet the barcode requirement. This applies to all containers irrespective of when they were approved.

Prohibited lids

It is also a condition of approval that eligible cans do not use removable ring-pull lids (commonly referred to as 360 end). From 1 December 2019, the supply of cans with removable ring-pull lids will be prohibited in NSW to prevent the detachable lid from potentially entering the NSW litter stream, which is contrary to the purpose of Return and Earn.

containers showing acceptable and prohibited lids

What is the container transition period?

To minimise disruption to businesses resulting from the introduction of the NSW CDS, a transition period is in place until 1 December 2019. This transition period is to give suppliers enough time to sell old stock and make the necessary changes to labels, barcodes and cans to comply with the legislation.

During the transition period, which began on 1 December 2017 and finishes on 1 December 2019, penalties do not apply for containers that do not comply with the regulations.

What happens on 1 December 2019?

On 1 December 2019, the container approval transition period ends and for the first time:

  1. Eligible containers will be required to show the refund mark in accordance with section 22B of the Regulation; and
  2. It will be an offence under section 40 (8) of the WARR Act to contravene any condition of container approval as prescribed by section 23A of the Regulation, specifically:
    1. All eligible containers must have a compliant barcode (22A the barcode requirement),
    2. All approved containers must have compliant lids (23A (b) the exclusion of removeable ring-pull lids).

What are the relevant pieces of legislation that list these requirements?

The container approval transition period is legislated through the Schedule 2 Part 1 Provisions of the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (the Regulation) with reference to the Waste Avoidance and Resource Recovery Act 2001 (the Act) and the Waste Avoidance and Resource Recovery Amendment (Container Deposit Scheme) Act 2016 (The WARR Amendment).

How much notice has been given?

Suppliers and retailers will have had two years since the commencement of the scheme on 1 December 2017, to sell old stock and update containers to comply with the legislation.

Why is NSW prohibiting removable can lids?

The primary objective of the Return and Earn scheme is to reduce litter in NSW. Cans with lids that are designed to be removed when opening may result in the metal lid entering the litter stream. Cans that use ring-pull mechanisms therefore do not align with the objectives of the NSW CDS. These cans are also prohibited under the South Australian container deposit scheme. Prohibiting cans with removable lids will help to align the NSW scheme with this pre-existing scheme.

How many suppliers are affected by the prohibition of 360 end lids?

These lids are predominantly used by boutique breweries and there are very few suppliers in NSW who currently use them.

What can suppliers and retailers do with 360 end lid cans still held after 1 December 2019?

Suppliers can continue to supply these cans in other States/Territories that do not otherwise prohibit these cans.

What are the potential penalties that can apply for non-compliance after 1 December 2019?

The Act specifies that for contraventions of the refund marking requirement (section 39), the maximum penalty equates to $440,000 for corporations and $110,000 for individuals. For contraventions of the barcode or lid requirement (section 40), the maximum penalty equates to $20,200 for corporations and $5,050 for individuals.

The EPA uses a variety of approaches and tools to address non-compliances, not all of them result in penalties.

Why is the refund mark so important?

Not all beverage containers are eligible for a refund. The correct 10c refund marking will help consumers understand which containers are eligible for refunds, maximise the number of eligible containers returned to approved collection points, and reduce the amount of beverage container litter in NSW. It will make it easier for consumers, suppliers, retailers and the EPA as the regulator to identify eligible drink containers.

To make it easier for suppliers to comply with the Regulation, the NSW refund marking has been agreed to by all States and Territories that currently have Container Deposit Schemes.

Why are barcodes important?

Barcodes are necessary to identify one class of container from another and to enable collection points to read registered containers without error or rejection. Barcodes also help to minimise the risk of refunds being paid on ineligible containers. For this reason, the barcode requirement applies to all eligible containers, including containers that are sold in multipacks.

How will the EPA be checking compliance?

The EPA will use a variety of tools to monitor compliance with the scheme. In addition to reviewing direct reports of non-compliance, the EPA will also review containers that are reported as rejected at return points for not having the correct barcode and may also conduct targeted and random audits and spot checks.

What if I can’t comply with the new rules?

If you’re concerned that your business will be unable to comply with the legislation by
1 December 2019, contact the EPA at container.approval@epa.nsw.gov.au.

Do I need to get a container approved by the EPA?

All eligible containers must have a container approval from the EPA, but each container only needs one approval from one supplier. See more information about the requirements for container approvals.You can check if the container you are supplying already has an approval in place at https://cds.epa.nsw.gov.au/CDSContainerSearchPage

Do I need to get my container re-approved by the EPA once I have added the refund mark or changed my barcode or lid?

No, but you are required to ensure that the details of your container approvals are recorded correctly on the NSW CDS Container Approval Portal.

Containers that do not have a compliant barcode, can lid and refund marking, could result in the container approval being revoked or suspended which will make it an offence to sell in NSW. Alternately you could find yourself in contravention of s40 (8) of the Act and penalties may apply.

I’m a consumer. Will the empty cans, bottles or cartons I have stored at home still be eligible for a refund after 1 December if they do not have the refund mark?

Yes. Return Point Operators are obligated to provide consumers with a 10c refund on eligible drink containers that do not show the national refund mark until 1 December 2021. After that date, refunds will not be able to be collected on containers that do not show the NSW refund marking.

I am a retailer. What if I am left with containers after 1 December that do not have a compliant refund mark?

Suppliers and retailers should take steps now to ensure they do not have non-compliant stock by 1 December 2019. If suppliers or retailers do have eligible containers that do not carry a refund mark, they may, at their own expense, affix a compliant refund marking to the existing label or directly onto the container.

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