Decoding the WTO Notification on The Sustainable Waste Management Act

The purpose of the draft is to require any company that introduces a product or its packaging to the Kenyan market to be subject to EPR (Extended Producer Responsibility) obligations. This will be achieved through mandatory extended producer responsibility schemes.

Understanding EPR Obligations: Scope and Requirements

The draft regulations apply to producers of products and packaging.  The definition of a producer is quite broad and covers any company “that introduces goods, products and packaging into the country using authorised means by manufacturing, importing, distributing, converting, selling or reselling or otherwise brings”.

However specific examples of a producer are provided in the application form for registration in the Second Schedule. Specifically, this confirms that a producer includes a:

• Manufacturer
• Importer
• Refiller
• Repackager
• Rebrander
• Brand owner
• Converter
• Others………………….(to be specified in the registration application)

Registration and Compliance: Navigating the Process for Producers

The covered products are set out in the first schedule and include packaging for non-hazardous products and electrical and Electronic Equipment etc.

Producer must meet EPR requirements through individual or collectives schemes

To meet their EPR requirements the producer must either set up an individual or a collective extended producer responsibility compliance scheme or join a collective extended producer responsibility compliance (PRO) scheme.

The producer compliance scheme must be registered with the National Environment Management Authority (Authority) and apply for an annual operating license before carrying out their EPR obligations.

Individual and collective extended producer responsibility compliance scheme must prior to registration submit a 4-year EPR Plan to the Authority setting out information in Section 16. Every producer responsibility organisation must submit an annual work plan and progress report to the Authority.

Registration, Fees, Record Keeping, and Reporting: Key Elements of Extended Producer Responsibility (EPR) Framework

Registration

Producers cannot introduce a product into Kenya unless the producer is registered and has obtained a Registration Certificate and a producer responsibility number from the Authority.

The application for registration includes the completion of Form A set out in Second Schedule, the registration fee (Third Schedule) and documents listed in Section 10(4).

A producer producing a covered product before these regulations enter into force will have 6 months to register after the date of commencement.

It is an offence for anybody to place a product on the market on behalf of an unregistered producer and this offence is liable upon conviction to a fine of at least

Kshs 500,000 per product or to one year imprisonment or to both.

Free riders who are not a member of a producer responsibility organisation commit an offence under these regulations.

Fees

Members of collective extended producer responsibility must pay registration fees, an annual subscription fee and EPR fees. The EPR fee will be modulated for each producer based on the quantity of products introduced on the market as well as circular economy considerations such as the recyclability and recoverability of the product etc. (section 19).

Record Keeping

All producers must maintain updated records of products managed, eco-design standards, contracts entered with agents, licensed waste service providers and recyclers, and level of performance as per the work plan.

Reporting

By 31 January each year all EPR compliance schemes must publish and submit their annual EPR report to the Authority

The revised draft regulations were circulated by the WTO on 26 April 2023. According to the WTO Notification G/TBT/N/KEN/1424 the proposed date for enactment of the regulation is 30 September 2023

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