We are unsure whether we are a packaging producer

The Packaging and Packaging Waste Regulation (EU) 2025/40 separates two questions that are easy to mix up: who manufactures packaging, and who is the producer for extended producer responsibility. The manufacturer is any person that manufactures packaging or a packaged product; where a person has packaging or a packaged product designed or manufactured under its own name or trade mark, that person is the manufacturer, even if another trade mark is visible (Article 3(1), point (13)(a)).^[1]

The producer is defined by the first making available in a country. A producer is any manufacturer, importer or distributor to whom one of five cases applies, whatever the selling technique, including distance contracts (Article 3(1), point (15)). Points (a) and (b) cover a company established in a Member State that first makes available, from within and on that same territory, transport, service or primary production packaging, or products packaged in other packaging. Points (c) and (d) cover a company established in a Member State or in a third country that first makes such packaging or packaged products available on the territory of another Member State directly to end users. Point (e) covers a company established in a Member State that unpacks packaged products without being an end user, unless someone else is the producer under points (a) to (d).^[1]

The term ‘distance contract’ is taken from the Consumer Rights Directive (Article 3(1), point (14), referring to Article 2(7) of Directive 2011/83/EU): a contract between a trader and a consumer concluded under an organised distance sales scheme, with the exclusive use of means of distance communication, such as a web shop. Because the definition applies irrespective of the selling technique used, other sales at a distance are not excluded either. An importer is a person established in the Union that places packaging from a third country on the market (point (17)); a distributor is any other person in the supply chain that makes packaging available (point (18)).^[1][2]

There is a rule for very small brand owners. Where the person that has packaging made under its own name or trade mark is a micro-enterprise as defined in Recommendation 2003/361/EC as applicable on 11 February 2025, and its packaging supplier is in the same Member State, the supplier is the manufacturer (Article 3(1), point (13)(b)). Article 15(12) extends this for the manufacturer duties where the supplier is located in the Union.^[1]

Being a producer has consequences in each country. Producers register in every Member State where they make packaging available for the first time or unpack packaged products (Article 44(2)) and may not sell there until they are registered (Article 44(4)). They have extended producer responsibility under the schemes of Articles 8 and 8a of Directive 2008/98/EC for that packaging (Article 45(1)), and may entrust a producer responsibility organisation with it (Article 46(1)).^[1]