The emerging duties of data collection and reporting reflect a trend that is expected to be extended to food waste in the drive for sustainability and a circular economy. Although there are numerous individual projects addressing food waste there is currently little composite information on waste disposal within the food waste industry. As initially flagged by the Dimbleby National Food Strategy (NFS), the Westminster government is now addressing measures to gather data to better understand food waste systems and practices. Government is calling on industry to assist in gathering information to inform how to tackle these issues.
The reduction of food waste offers clear positive outcomes of reduction in greenhouse gas emissions, resilience, efficiency and reduced costs as society embraces the move towards a more circular economy. Food Business Operators or FBO’s are already reducing food waste in the supply chain through voluntary initiatives such as The Courtauld Commitment 2030 (UK), and the UN Sustainable Development Goal 12.3 with the ambitious 2030 target to halve per capita food waste and reduce food losses along production and supply chains. In delivering these targets we see a new phase in the journey for food regulation.
The Food Data Transparency Partnership (FDTP) was first announced in June 2022 as part of the UK NFS with clear objectives to drive sustainable change across the food system. With one aim of increasing the sharing of knowhow in the food sector regarding health, animal welfare and the environment, the partnership is missioned with introducing new duties for collecting, reporting and measuring data. The partnership announcement was accompanied by a NFS Consultation across England which sought views on several potential measures surrounding FBO’s responsibility to report the amount of food waste they produce. The consultation period closed in September 2022, but the outcome is yet to be published – it is taking some time to establish the requirements.
More recently in February 2023, the FDTP held its first meeting and Scotland announced an intention to consult on introducing mandatory reporting of food surplus and waste in their consultation (Circular Economy Route Map to 2025 and beyond). If subsequent legislation is passed as indicated, failings in data reporting and in the handling of the waste food could lead to breach, and potentially legal proceedings and penalties such as large fines.
We have seen a raft of detailed legislation around sustainability and the circular economy but the overall the expectation for the data reporting regime for food waste is likely to reflect the new requirements of data reporting for packaging (applicable to pre packed food and drink sales). This is currently in the data collection phase, and the regulation of the waste will apply from 2024.
On 28 February 2023, new legislation was implemented which requires stringent data collection and reporting to the Environment Agency of the use of packaging for food. The Packaging Waste (Data Reporting) (England) Regulations 2023 (and its equivalent in the devolved nations) require certain producers to collect their packaging data from the start of 2023 or 28 February at the latest, and report to the regulator in July and on a six-monthly basis thereafter. This will be assessed, with a view to passing secondary legislation governing the use of packaging that will apply from 2024, additional waste management fees for producers associated with household waste, the use of logos to indicate how the packaging should be sorted or recycled, and the introduction of fees based on ecomodulation of packaging.
This trend of setting levels of sustainability through legislation requiring businesses to submit data on their activity on a regular basis is also seen in other areas, including through supply chain due diligence, and on land usage of suppliers to protect against deforestation. It is hoped that the enforcement of sustainability and circular economy measures will be driven by an informed analysis of real time data. Historically, when bringing in new laws to respond to changing times, we have seen engagement in the form of consultations, trade association movement and lobbying. Now, enforceable legal requirements are emerging for industry to report to the government on current practices and activities, and for that to then be analysed and to be taken into account when legislating.
The future legal requirements will ensure that producers are incentivised to maximise value from resources and minimise waste through the circular use of materials. It is a far reaching system which considers the science, technology and infrastructure, and where the intention is that, as these databases continue to be compiled and usage changes, the requirements will be restated to reflect those altered practices, in a similar way to the current annual recycling targets. The objectives behind this reporting raise not only the opportunity for gathering information and data to inform future regulation but also the for potential enforcement arising from non compliance. Hence, it is vital that FBO’s participate as much as possible at this early stage so that meaningful duties and data emerge. The collation of databases by regulators will create a substantiated overview of food waste.
The successful establishment of regulation with reference to historic data is reliant on the data’s accuracy. It is important that the right picture is drawn in the collective submissions so that the right standards are set, and in turn this will impact again on the incentives to reduce waste production. The value of reliable (industry led) data may well also improve the current attempts to provide the consumer with information about product sustainability – whilst at the same time avoiding the well documented pitfalls of, for example, relying on metrics that are not commonly understood or accepted. The FBO must tread a careful line between providing well intentioned information and the accusation of greenwashing.
There are some practical steps an FBO may consider:
- Be active when consultations are launched and to input directly or through association. Without a wide base of good input data the outputs fail.
- Consider the reputational risks of failing to actively take steps to reduce food waste and the impact on ESG credentials. Steps taken now are an investment for the future.
- Whilst mandatory reporting on food waste is not here yet, it is likely to be required in future, so businesses should start to prepare. Good resources are already available – for example the WRAP Food Waste Reduction Roadmap, version March 2023 is a helpful resource in navigating this transition.
- Review the thresholds of the new data reporting on packaging requirements and when these duties may apply to your business. Some new data collection requirements are applicable now. Once the threshold is crossed, the requirements will apply and failure to comply could result in investigation and enforcement.
Article co-authored by Trainee Solicitor Oliver Roberts