FAQs for s 23 of the WMA & the petition process

The Takeaway Throwaways petition is calling on our Government to remove single-use disposable serviceware and replace it with accessible, reusable alternatives, nationwide. This isn’t airy fairy or wishy washy; the Government already has the power to do this under existing legislation. Join us in calling them to ‘push play’…

Section 23 contains a bunch of these regulation-making powers. For zero waste geeks, s23 is magical. Remember when the Government banned plastic shopping bags, and plastic micro-beads in personal care products and cleaning products? Both bans were done using the power of s23. Actually, those are the only times s23 has ever been used.

But, s23 is so much more than a blunt banning tool. It also gives the Government the (yet to be used) power to implement positive, proactive measures for a less wasteful future, including incentivising and mandating reusables. We want to see the Government use these positive powers too. Regulation shouldn’t just be about taking away the things that don’t belong in our future; regulation should also be about designing, building, supporting, and leading us towards the future we want to see.

HOW can S 23 CAN BE USED TO BAN SINGLE-USE DISPOSABLE PLASTIC SERVICEWARE?

Section 23(1)(b) states that regulations can be made for the purpose of “controlling or prohibiting the manufacture or sale of products that contain specified materials”. So, in this case, the Government could prohibit single-use disposable food and drink serviceware (i.e. the “product”) containing plastic, including bio-based plastic (i.e. the “specified material”).

**FYI that the definition of “sale” can include giving things out free of charge (like with the plastic shopping bag ban).

WHY only BAN SINGLE-USE DISPOSABLE SERVICEWARE CONTAINING PLASTIC? WHAT ABOUT ALL THE OTHER TAKEAWAY THROWAWAYS MADE OF PAPER, CARDBOARD, BAMBOO?

We would like to see all single-use disposable serviceware phased-out, regardless of what this serviceware is made of. However, the wording of s 23(1)(b) - the “ban” part of the section - means we have to focus on products “that contain specified materials”. So, we’ve compromised to limit our focus to single-use disposable serviceware (the product) containing plastic, including bio-based plastic (the specified material).

However, straight up, we think single-use serviceware sucks regardless of the material. It’s pretty stink to cut down a tree or rip up a plant, transport it to a manufacturing plant, use lots of energy and resources to turn it into a single-use item, then transport it to your local café or festival (which may be thousands of kms away), to be used once and then probably thrown into a rubbish bin to go to landfill and produce methane.

That’s why we’re also calling on the Government to use different parts of s 23 to incentivise, mandate, and co-design reuse schemes to replace all single-use disposable serviceware.

How can s 23 be used to mandate and incentivise accessible reuse systems?

Section 23(1)(c) states that regulations can be made for the purpose of “requiring specified classes of person to provide a take-back service for products”. These regulations can prescribe requirements for the take-back service, including that the products are taken back for reuse.

So, in this case the Government could require any vendor of food and drink (the “specified class of person”) to provide a take-back service for any takeaway serviceware (the “products”) used to carry that food and drink. The regulations would specify that the serviceware would be taken back for the purpose of reuse.

The Government can prescribe requirements for the takeback service, i.e. what it would look like, how it would operate, the kinds of reusable products used and so on. The Government can require that the service is accessible, following models co-designed by an inclusive and representative working group.

To ensure that the reusables loaned to the public are actually returned, the Government could choose to use its powers under s 23(1)(e) to require “specified classes of person to charge a deposit on the sale of a product, requiring the deposits to be refunded in specified circumstances”. That is, vendors of food and drink would charge a deposit on any reusable serviceware they provide the customer, which the customer gets back when they return the reusable serviceware.

The final part of incentivising reuse is to require a compulsory fee to attach to all single-use disposable serviceware that is not banned (i.e. all the stuff that doesn’t contain plastic). This can be done under s 23(d). The fee is to be paid by the customer at the point of purchase when they select a single-use disposable serviceware product rather than a reusable option. The fee is kept by the food and drink vendor (not centralised like a levy or tax) - this is the approach now in operation in Berkeley, California.

I’ve signed the petition, now what?

The petition will remain open for signing until 11 February 2021. After that, we present it to Parliament (come join us!). A Select Committee of MPs will then consider the petition and decide whether to recommend the Government implement the petition’s requests. During this time, the Select Committee will hear from the petitioners (i.e. the Takeaway Throwaways team), as well as representatives from the Ministry for the Environment, who will need to respond to the petition. The Committee may also request to hear from others with specialised knowledge on the petition’s contents, or who might be affected by the petition’s demands. During this time, the Minister will likely be briefed on the petition’s contents and consider whether and how to respond.

If enough of us sign this, will the Government have to listen and do what we’re calling for?

No, but the more people who sign, the more persuasive the petition will be. In the meantime, the surrounding conversation and awareness that Takeaway Throwaways generates should speed up the normalisation of a reuse culture in Aotearoa New Zealand, and encourage more businesses to ditch single-use disposable serviceware, even if the Government doesn’t move to regulate. Though in an ideal world, we’d achieve BOTH these outcomes.

If the Government decides to adopt the petition’s requests, what will happen?

First, that’d be awesome! Second, brace yourselves because changes won’t come overnight - there’s a process. The Takeaway Throwaways petition calls for the Minister to make regulations under s 23. Before the Minister can do this they must consult with those affected, i.e. the public, the hospitality industry, the packaging industry, and other groups and organisations. If, after consultation, the Government decides to go ahead, the approach to phase-outs and reuse schemes will need to be designed. We’re recommending that a Government-mandated working group does this. Such a group would feature key stakeholders, including representatives from the hospitality industry, the disabled community, reusable packaging and serviceware businesses, and zero waste NGOs. Apart from designing the policy, this working group will also need to work out what funding, infrastructure, and systems are required to support the transition to reusables (such as dishwashing/sterilisation facilities, and fleets of reusable crockery and cutlery), and the phase-in period for the regulations.

What do you mean by a phase-in period?

We’re asking the Government to take us from the status quo where throwaways are available virtually everywhere, anytime, free of charge, and enabled by nationwide coordinated rubbish bin infrastructure, to a situation where those throwaways disappear. Instead we would have a culture of BYO combined with coordinated reuse systems that rely on a totally different set of infrastructure. This is absolutely possible - it’s no pipe dream - but it will take time, particularly to do it well. As we work towards the full reuse schemes, staged regulations can start to prepare the way; the Government can start with some easy initial steps to make disposables less attractive and incentivise reuse in the short-term. For example, they may require a compulsory fee to attach to all disposable serviceware before mandatory phase-outs kick in, and they could regulate to require that ‘have here’/ ‘dine-in’ customers be served with reusables only (see the Berkeley approach to staged phase-ins). Section 23 allows for these types of additional measures.