Synapse - June 2020 – 3 / 6 观点
This year welcomes important new rules for Poland's food and beverage industry.
Sweetened/carbonated beverages have been categorised as non-alcoholic beverages, which – according to the Polish Classification of Goods and Services (PKWiU) – are industrial processing products, with the symbol 11.07.19 or 11.07.19.0.
According to the Regulation No 178/2002 of the European Parliament and of the Council of 28 January 2002, beverages are classified as foodstuffs (food). Therefore, activities related to sweetened/carbonated beverages should comply with the regulations on food, its labelling, and waste generated during its production.
For example, under Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, sweetened beverages should indicate the content of sugar or other sweeteners on the label.
The Polish government's recent draft legislation to amend certain laws concerning the promotion of healthy consumer choices has been authorised by the EU. The draft law imposes a fee for placing foodstuffs and beverages containing monosaccharides or disaccharides (as well as added sweeteners) on the domestic market. This obligation is imposed on entities that sell beverages to a retailer, as well as retailers that produce, import, or purchase goods as part of the intra-community supply of goods.
Where a contract between the producer and the purchaser of a beverage specifies the composition of the beverage, the purchaser shall be liable to pay a fee. The fee – together with the submission of the required information – should be paid to the head of the tax office competent for the place of residence or seat of the entity obliged to pay the fee by the 25th day of the month following the month to which the information refers. The new law is expected to come into force on 1 July 2020.
The aim of the new regulation is to promote healthy dietary choices and improve quality of diet by reducing the consumption of sweet drinks, using fiscal policy as a tool.
The income from these fees will be used, in part (96.5 %), to co-finance the National Health Fund, which will use this revenue for educational and preventive activities. The National Health Fund will also allocate some of these funds to health care services related to maintaining and improving the health condition of beneficiaries with diseases developed against the background of improper health choices and behaviours, in particular the overweight and obese.
The head of the tax office is able to impose on an obliged entity which has not paid the fee on time an additional fee corresponding to 50% of the fee due.
The public notes the complexity of the mechanism for calculating the fee payable, and the difficulty of identifying the liable entity when attempting to impose an obligation downstream of the distribution chain, as well as the short cool off period (absence of law).
Interestingly, 19 July 2019 Act on Counteracting Food Waste introduced an obligation to provide food not intended for sale to a non-governmental organisation on the basis of a concluded contract free of charge. This applies in particular to foodstuffs with packaging that appears defective, whereas beverages with alcohol content above 0.5% are excluded. The obligation is imposed on sellers of food, understood as undertakings operating a food business for the sale of food in a retail or wholesale establishment with a sales area of more than 400 m2, where the revenue from the sale of the food represents at least 50 % of all sales revenue.
Moreover, the entrepreneur is obliged to conduct two week-long educational and information campaigns within their food enterprise on rational food management and counteracting food waste at least once a year. The seller shall also pay a fee for wasted food in the amount of PLN 0.1 per each kilogram of wasted food, which shall be paid to the account of a non-government organisation with which the seller is connected, by a food transfer agreement. The Act also imposes reporting obligations.
Furthermore, sellers are obliged to submit a written annual report on food waste to the voivodeship environmental protection and water management fund in the voivodeship in which it operates in the field of food sales. This report must include data on the total weight of food waste in a given year and the amount of the fee due, by 31 March of the calendar year following the year to which the report relates.
It is estimated that the balance of the public finance sector will be negative as a result of the new regulation, and will amount to approximately PLN -0.8 million annually. Revenue from fines paid by entrepreneurs were not factored into these estimates. The funds which come from the fee for food wastage are allocated to social assistance, equal opportunities, family support and the foster care system, and charitable activities – which an emphasis on those that provide food to people in need, or that run mass catering establishments for people in need.
In instances where a food seller fails to conclude an agreement on the transfer of food with a non-government organisation or fails to pay the fee for food wastage, the voivodeship environmental protection inspector competent for the place where the food seller conducts food sales activities can impose an administrative fine of up to PLN 10 000 (c. 2,500 EUR). In addition, failure to comply with the reporting obligations will result in the court imposing a fine.
The law came into force in its entirety on 1 March 2020. The aim of the Act is to counteract food waste and negative social, environmental and economic effects resulting from food waste. However, the Act contains many uncertainties. For example, it doesn't specify when and how often food supplies should take place, and the terms of contracts concluded between the obliged entities and non-governmental organisations are not precisely defined. This challenges stakeholders to ensure an effective contractual and regulatory framework.
It is also worth mentioning that the Commission Regulation (EU) 2020/356 of 4 March 2020 amended Annex II to Regulation (EC) No 1333/2008 of the European Parliament and of the Council, which determines the community list of food additives approved for use in foods and conditions of use. As part of these amendments, Polysorbates (E 432-436) were authorised for use in carbonated beverages as anti-foaming agents.
Fortunately for companies not yet prepared to adapt to the new rules, the deadline for the obligation to be added to the product and packaging and waste management (BDO) database as a holder of waste has been pushed back until 31 December 2020, due to in the SARS-Cov-2 pandemic.
This is on the basis of the Act of 14 May 2020 amending certain laws on protective measures in response to the spread of the SARS-CoV-2 virus. Therefore, entities obliged to keep waste records as waste holders and not entered into the BDO system may keep hard copy waste records until the end of the year; entities entered into the BDO system only keep electronic records.
In addition, the deadline for submitting the annual report on generated waste and waste management for 2019 has been pushed back to 31 October 2020, and the annual report on products, packaging and waste management for 2019 to 11 September 2020.
For Poland's sweetened/carbonated beverages sector, the above changes are crucial. This is because the obligation to register with the BDO system and the reporting obligations apply to (among others) those introducing products in packaging, exporting and delivering products in packaging within the EU – for example, beverage producers.
This amendment aims to reduce the burden on businesses, thus avoiding possible administrative penalties which would even result in a ban on operating for three years.
The new regulations for the sweetened/carbonated drinks industry bring with them legal uncertainties and obstacles. In addition, businesses have been severely affected by the SARS-CoV-2 pandemic, which makes it difficult for them to continuously adapt to legislative changes. Professional legal assistance may prove necessary to meet new regulations.
If you have any questions or concerns regarding new obligations for the food industry in Poland, please contact a member of our team.