INDIA - In the endless march against the evil plastic bag, politicians across Asia are flexing their populist muscle and introducing legislative measures to either restrict or ban plastic outright with varying levels of success. However the position that plastic packaging manufacturers in India find themselves in really takes the biscuit – quite literally.
Not satisfied with slapping a ban on plastic shopping bags in July 2013, the Northern Indian State Government of Himachal Pradesh took a step further and introduced a ban on 25 food items sold in plastic packaging including biscuits, crisps, candy, chewing gum, ice cream, chocolates, noodles and other snacks.
The ‘ban order’ came as a response to three court petitions filed in 2010 aimed at reducing indiscriminate use of plastic. In October 2011 the State government took the first step and imposed a complete ban on storage and use of non-biodegradable disposable plastic cups, plates and glasses and warned that those violating it could face a fine of up to Rs5,000.
At that time the state’s Supreme Court ordered the formation of a committee, headed by the then Chief Secretary of the State, to recommend how to reduce the use of plastic packaging in food items. However, the committee failed to follow the order and was disbanded by order of the court and a second committee formed. According to local media reports at the time “after much dilly-dallying, the committee gave its list of recommendations in January 2013.”
In its order, the court pronounced that the list was not final and more items could be included. “These items should be brought into Himachal only in biodegradable packaging and even soft drinks should be brought in glass bottles or other biodegradable packaging but not in non-biodegradable packaging", the bench had said in the order.
Table 1. Items in non-biodegradable packing to be banned in Himachal Pradesh:
* Kurkure/mad angles
* Lollypop/Candy/candy bar/toffees
* Ice cream
* French fries
* Colas, carbonated drinks
* Synthetic and fruit beverages
* Naan, pav bhajee, golgappa and street foods
However industry associations, Sanyukt Vyapar Mandal Khalini, the Indian Biscuits Manufacturers Association, NOIDA, and Haroli Block Industries Associations, Tahliwal Una promptly presented a petition to the Himachal Pradesh High Court based on the argument that the court encroached the area of legislation by issuing such orders, and that the courts had no jurisdiction in the matter.
On September 3, the Court ordered the State administration to freeze the implementation of the regulation until 19 November 2013 while it heard the petition, and following a hearing, the bench rejected the petitioners' plea.
"Courts do not legislate by pronouncing judgments and issuing necessary directions. Courts only recognise and enforce fundamental, constitutional and legal rights of the parties. The orders were passed by the court after hearing the parties and weighing pros and cons to safeguard health of citizens and natural environment of the State," the judgment reads.
Now, as per the court order, in addition to the 25 ‘junk food’ items to be banned (See Table 1), milk and milk products, edible oils/fats, fruits, vegetables and meat products will be manufactured, transported, sold, packaged and distributed as per the Food Safety & Standards (Packaging & Labelling) Regulation, 2011.
The court also directed the state to ‘lay down norms as per Section 3A of the HP Non-biodegradable Garbage (Control) Act, 1995, within 12 weeks and implement Section 7 of in order to determine new non-essential food items, which are required to be manufactured, transported, sold, packaged and distributed in biodegradable material” Additionally edible oils/fats must be packed in metal containers and not plastic bottles or pouches.
One of the petitioners against the government notification, the Indian Biscuit Manufacturers’ Association (IBMA), is now planning to file a further review petition in the court.
Other Indian state plastic bans
Across the Rest of India it is a similar story with no fewer than 14 states and municipalities having introduced restrictions or outright bans on plastic packaging since 2012, with varying enthusiasm (see Table 2) while the litigation briefs and appeals are flying like confetti.
In New Delhi, the 2011 plastic waste rules intended to regulate the use, collection, segregation and disposal of plastic bags, including packaging of items such as magazines and greeting cards as well as garbage bags, have largely been ignored.
In 2009, the government exercising provisions of Delhi Degradable Plastic Bags (Manufacturing, Sales and Usage) and Garbage (Controlled) Act 2000, forbade sale, storage and use of all kinds of plastic bags in certain notified places, such as luxury hotels, hospitals, restaurants, all fruits and vegetable outlets, liquor vendors, shopping malls, local shopping centres and all retail and wholesale outlets of branded chains selling consumer products. The ban, however, did not produce the desired result.
In September 2011, a notification for implementation of the decision was issued under the Environment (Protection) Act, 1986, under which violators could face imprisonment up to five years and fine. A November 22 deadline was given for all parties to stop manufacture, sale, storage and use of the plastic bags, to little avail.
Table 2. Indian States with Bans or Partial Bans on Plastic Bags and/or Packaging:
* Mumbai (city)
* Rajasthan (largest state in India)
* New Delhi
* Andhra Pradesh
* West Bengal
* Kolkota (city)
* Tamil Nadu
* Jammu & Kashmir
|States considering ban:|
|* Madras (city)
The Central Pollution Control Board has instructed the Delhi Pollution Control Committeer to provide, within 15 days, its Annual Action Report for the periods 2011-12 and 2012-13 but thus far has received no reply.
The 2011 Act made changes in the way plastic bags are being regulated. One of the main provisions was that no carry-bags should be made available free of cost to consumers. "The municipal authority may determine the minimum price for plastic carry bags," says the Act, but no price has been set.
Other provisions of the Act stipulate that foodstuffs will not be allowed to be packed in recycled plastics or compostable plastics, recycled carry bags will conform to BIS specifications and plastic carry bags will either be white or have pigments and colorants which are in conformity with the ban prescribed by the Bureau of Indian Standards. Also, plastic bags should not be less than 40 microns in thickness. However, inspectors have no measuring instruments.
According to the Chief Minister’s office: "From today, the government has banned all use, sale and manufacture of plastic bags in the city. No exceptions will be made.
"Plastic is an environmental disaster. These bags clog the city's drains, they are non-biodegradable. It might take time, but we have to ensure that this ruling is enforced throughout Delhi," he added.
Almost immediately after the ink was dry on the local government ordinance, the All India Plastic Industries Association (AIPIA) filed an appeal, saying the order would jeopardise the livelihoods of hundreds of thousands of people involved in the manufacture and sale of plastic bags.
The case is still being heard by the Delhi High Court, or more accurately it is somewhere on a court docket in a filing cabinet somewhere in India’s monolithic legal system… which makes the topic subjudice, which means that we can’t talk about it here.
What we can talk about is the absence of real science in all of these arguments in before the various chambers, legislative or judicial, throughout India.
No legislative authority or court in India has conducted or commissioned an LCA (Life Cycle Analysis) on plastic bags or packaging
The position taken that biodegradable is ‘good’ plastic is ‘evil’ may be valid in the court of public opinion, but the Indian reality is that:
- The country has no capacity to manufacture biodegradable plastic in the grades, quality or volumes required. According to KP Mohandas, secretary general of the Indian Biscuit Manufacturers’ Association in appealing the Himachal Pradesh court order “We have been consulting the Indian Institute of Packaging (IIP) about introducing bio-degradable packaging. The director told us clearly that no such technology is available in the country for biodegradable packaging of mass food products such as biscuits.
- Not a single Indian State has a segregated waste collection system that could isolate biodegradable plastic from other household waste, and even if they did….
- The country has no industrial composting facilities whatsoever means that by replacing conventional plastic with biodegradable the problem will still not go away!
The growing intervention of the judiciary, over the legislative arm of the state is a worrying trend. While the judges are not introducing laws they are effectively ‘making law’ by their rulings.