Producers risk heavy fines for their products and packaging pollution

Written by
Dr Ayub Macharia

Kenya has pronounced itself loudly on its transition from linear to circular economy through the Sustainable Waste Management (SWM) Policy (2021) and SWM Act 2022 which became operational on 23rd July 2023. One of the gains in the SWM Act is expansion of the scope of the waste generator to include producers. Section 13 of the SWM Act states that “Every producer shall bear extended producer (EPR) obligations to reduce pollution and environmental impacts of the products they introduce into the Kenyan market and waste arising therefrom. Every producer shall fulfill their extended producer responsibility obligations individually or collectively in a compliance scheme”.

EPR is a policy approach based on the Polluter-Pays Principle in which producers are given significant responsibility – financial, organizational, and/or physical – for the product design, collection, treatment, and disposal of the waste from the products they introduce in the market.

According to the SWM Act 2022 EPR is defined as an “environmental management approach in which a producer‘s responsibility for a product is extended to the post-consumer stage of a product life cycle”. Further, a producer is defined as “an entity that introduces goods, products, and packaging into the country using authorized means by manufacturing, importing, converting, filling, refilling, repackaging or rebranding. In this regard, the Producers are obligated just like other waste generators to ensure that their products and associated waste are appropriately managed.

On 30th August 2023, the National Environment Management Authority (NEMA) issued a public notice requiring all producers to submit extended producer responsibility implementation plans as evidence of compliance with(Section 13) of the Sustainable Waste Management Act 2022. NEMA also released two public notices on 11th September 2023 and on 17th October 2023 requiring all producers and associated producer responsibility Organizations to remove all post-consumer waste from the environment as a matter of urgency to ensure they do not clog drainage systems, obstruct the flow of rivers or cause pollution to ecosystems. NEMA reiterated that legal action will be taken on any producer and associated PROs whose product or packaging is found littering the environment.  

Unlike in the past when a member of the public was the only one held responsible for littering, the producers can now be held liable to demonstrate measures taken to ensure that their products and packaging do not pollute the environment. Hence littering went unpunished if the owner of the space or the polluter is unknown. However, as per SWM Act Section 13, a label on a product or packaging prescribes who is responsible for pollution. In this regard, the two public notices are clear indications that responsibility for pollution has taken a new dimension as per SWM Act 2022.

While section 13 of the SWM Act helps to place responsibility for pollution on the producer, further guidance regarding the waste littering crime is provided in section 4 of the Waste Management Regulations 2006 which provides for the responsibility of the waste generator. Section 4(1) postulates that “No person shall dispose of any waste on a public highway, street, road, recreational area or in any public place except in a designated waste receptacle”. Further, Section 4.2 of the regulations states, “A waste generator shall collect, segregate and dispose of such waste in the manner provided for under these Regulations”.

Hence, a prosecution script is already set by joining the dots, whereby SWM Act 2022 Section 13 will be read together with Section 4 of the Waste Management Regulations 2006. It is not difficult for NEMA to amass evidence to prove a pollution case, hence producers and PROs should swing into action and initiate clean up activities for their products and packaging as demanded by NEMA. If prosecuted and convicted, the penalty is as prescribed in the Environmental Management and Coordination Act (EMCA) 1999 Section 142 which reads verbatim as follows:-

EMCA Section 142: Offences relating to pollution

(1)     Any person who—

(a) discharges any dangerous materials, substances, oil, oil mixtures into land, water, air, or aquatic environment contrary to the provisions of this Act;

(b) pollutes the environment contrary to the provisions of this Act;

(c) discharges any pollutant into the environment contrary to the provisions of this Act,

commits an offence and shall on conviction, be liable to a fine not less than two million shillings but not more than five million shillings.

(2) In addition to any sentence that the Court may impose upon a polluter under subsection (1) of this Section, the Court may direct that person to—

(a) pay the full cost of cleaning up the polluted environment and of removing the pollution;

(b) clean up the polluted environment and remove the effects of pollution to the satisfaction of the Authority.

(3) Without prejudice to the provisions of subsections (1) and (2) of this section, the court may direct the polluter to meet the cost of the pollution to any third parties through adequate compensation, restoration or restitution.

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