Retailers' responsibilities on carrier bags: changes from 5 October 2015

Retailers' responsibilities on carrier bags: changes from 5 October 2015

Published:

Author: Ron Reid

Applies to: England

In a move designed to reduce waste, carrier bag charges come into force in England on 5 October 2015.

Large retailers will be required to charge a minimum of 5p for most single use plastic carrier bags. Small and medium sized businesses will not be caught by the change but can implement the charge voluntarily.

What must retailers do?

Retailers must charge for bags if they:

  • employ 250 or more full time equivalent employees in a reporting year
  • sell goods in England
  • deliver goods in England

When is a bag not a bag?

There are a variety of bags used in the retail sector. Under the legislation, a bag is regarded as such if it has an opening and is not sealed.

From 5 October 2015, retailers must charge at least 5p for carrier bags that are unused, plastic, with handles and with a thickness of 70 microns or less.

Retailers will not be required to charge for plastic bags for items which fall into one or more of the following categories:

  • uncooked fish, meat, poultry and their products
  • unwrapped food for animal or human consumption
  • unwrapped loose seeds, flowers, bulbs, corns, rhizomes or goods contaminated by soil
  • unwrapped blades
  • prescription medicine
  • live aquatic creatures in water
  • woven plastic bags
  • goods in transport
  • considered as sealed packaging for mail order and click and collect orders
  • returnable multiple reuse bags
  • used to give away free promotional material
  • used for a service where there is no sale or goods (for example, dry cleaning)

A bag can contain a number of items from the above list and no charge will be payable. However, if an item not on the list is added to the bag, then a charge will be incurred - e.g. a bag containing uncooked fish will not be charged for but if a box of tissues is added, then retailers would have to charge.

Bags used in deliveries

Retailers must charge for plastic bags used for deliveries and online sales (including click and collect services), however, the number of bags used per delivery is not known until the delivery is ready to transport. In those circumstances, retailers will be permitted to charge for an average number of bags provided 5p or more is charged per bag over all.

From a practical point of view, most retailers put bags of shopping into boxes for transportation to the customer's address. Accordingly, retailers should consider offering their customers bagless deliveries when no charge would be payable.

Returnable multiple reuse bags

Often known as 'bags for life' returnable multiple reuse bags must be sold for 5p or more, returnable to the retailer to be replaced free of charge and 50 to 70 microns thick. Many retailers already sell such bags but existing policies should be checked to ensure compliance with the new law.

Need to report to DEFRA

Retailers will have a responsibility to send records to DEFRA on an annual basis on or before 13 May following the end of the reporting year (which will run from 5 October 2015 to 6 April 2016 and then 7 April to 6 April from 2016 onwards).

For the whole of the reporting year, retailers must record:

  • the number of bags supplied
  • the gross and net proceeds of the charge
  • any VAT in the gross proceeds
  • what the retailer did with the proceeds from the charge
  • any reasonable costs and how they break down
  • administering donations to good causes

Reasonable costs include new costs incurred by the retailer to comply with the legislation. It could include the cost of changing till technology, staff training, taking professional advice and communicating the policy to staff and customers alike. Reasonable costs will not include the actual cost of the bags themselves.

Proceeds to go to good causes

It is expected that all proceeds from the charge will be donated to good causes. Retailers should consider which causes will benefit from the proceeds from the charge and put steps in place now to administer the donations.

The expectation represents a good opportunity for retailers to engage with customers and staff not only to choose the good causes, publicise details of the beneficiaries but also to work with the chosen organisations to forge relationships within the community.

Customer interest

Under the legislation, members of the public can request copies of carrier bags records. Where a request is made, retailers must provide copies of the records within 28 days. Retailers must ensure records are kept up to date to be able to comply with such requests within the deadline.

Enforcement

Local authorities will be responsible to ensuring compliance with the new legislation. Inspectors can visit stores and make test purchases. They are entitled to question staff and demand relevant documents if they believe there has been a breach.

Penalties and publicity

Local authorities will have power to fine retailers for not charging at least 5p for appropriate bags, not keeping records, not supplying records or where retailers mislead on how they are complying with the law.

Local authorities will have a menu of penalties available to them where a breach has occurred. They will have power to:

  • issue a non-compliance notice setting out steps required to correct the breach
  • impose a fixed penalty
  • impose a discretionary penalty
  • recover the cost of the investigation from the retailer if the law has been broken

In addition to the above a retailer can be ordered by the local authority to advertise that they've broken the law, what the penalty was and how a retailer is now complying. The adverse publicity that would follow is likely to incentivise compliance.

Fines

Fixed and variable fines set out in the tables below can be levied:

Fixed penalties

Breach Fine
Not charging for bags appropriately £200
Not keeping records £100 
Not supplying records £100

Variable penalties

Breach Maximum Fine
Not charging for bags appropriately £5,000
Not keeping records £5,000
Not supplying records £5,000
Giving false or misleading information to, or otherwise obstructing or failing to assist the local authority £20,000

Local authorities are not able to impose a variable fine if a fixed fine has already been imposed for the same issue (unless a non-compliance notice has been issued).

Fixed and variable penalties will be reduced by 50% if payment is made within 28 days but will be increased by 50% is payment is not made within 56 days.

In addition to the above, failure to comply can lead to a fine of £5,000.

Right to appeal

If a retailer feels that the penalty imposed was wrong, unreasonable or based on an error, they can object within 28 days of being issued with a penalty notice.

What should retailers do now?

Retailers should act now to ensure their staff and systems are ready for the change on 5 October 2015.

Practical steps that can be taken include:

  • Reviewing and amending check out systems to allow for the charge to levied
  • Reviewing and amending online delivery systems to allow for the charge to applied and give customers the option for bagless deliveries
  • Ensuring recording systems are in place
  • Training staff and put procedures in place to comply with the legislation
  • Communicating the policy to staff and customers
  • Put systems in place to administer donations to good causes
  • Work with customers and staff to choose which good causes will benefit and publicise details of beneficiaries
  • Work with the good causes to forge relationships within the community

If you are in any doubt about how to comply with the new legislation, please get in touch with a member of our dispute resolution and compliance team.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.