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    A Bill to Require EIAs Before Packaging Drinks in Plastic

    By Keith R | May 30, 2009

    Topics: Food/Beverage Issues, Packaging, Waste & Recycling | No Comments »

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    Last year in a post about efforts in Brazil to stop the sale of beer in PET bottles, I explored some of the possible ramifications of an April 2008 rejection by a federal judge of all challenges to a 2002 ruling that brewers wishing to bottle their beer in PET or any other plastic must first file an environmental impact study (EIA) and environmental impact report (relatório de impacto ambiental – RIMA) approved by the federal environment agency, IBAMA, and receive an environmental license before they get the food packaging registered with the Ministry of Agriculture (MAPA).  The case was initiated in 2002 by the Federal Public Ministry (Ministério Público FederalMPF) as a public civil action (ação civil pública – ACP).*

    At that time I didn’t include discussion of possible legislation based on the judgment.  I’m not a student of Brazilian constitutional law, but I seem to recall that such judgments theoretically can/should be directly applied, no interpreting legislation necessary.  But truth is, that court judgment has not been applied and probably wouldn’t be until legislation based on it is passed and/or other MPF actions reinforce it.

    The latter is exactly what just happened.  Three days ago, on 27 May 2009, in response to a 18 May filing by the MPF,  Federal Justice Roberto Lemos dos Santos Filho in the First Federal Court in Bauru, São Paulo (SP), issued an injunction requiring federal authorities to take all necessary measures to suspend the registration of any type of alcoholic drink packaged in PET bottles by the small brewer Belco (that’s right — the same company slapped and fined last year by the beer in PET case!) until such time as it obtains an environmental license for it from IBAMA.

    Which is one reason why a bill introduced two days ago (the day after the judge’s injunction) in SP’s state assembly interests me so.  The state deputy sponsoring it explicitly cited the injunction decision as the basis for his bill, going so far as to quote directly from the jugment.  My guess is that, by doing so, he may have innoculated this bill against a common parliamentary tactic in Brazil: a report by the legislative body’s Committee on the Constitution and Justice (CCJ) — every state assembly and both chambers of the national congress has a CCJ — declaring a bill to be unconstitutional.  [For those who might argue that states should not legislate on which packaging can be used for food and beverages, he also cites the provisions of the 1988 Brazilian Constitution that permits states to legislate “concurrently” with national authorities on consumables and environmental matters.]

    A second reason I find the bill interesting is its scope.  The 2002 judgment focussed on beer packaging, but the 2008 judicial decision essentially argued that any plastic used for containing any beverage should be subjected to prior environmental assessment before being authorized for placement on the Brazilian market, because of its probable environmental impacts.  I wondered at the time that this might occassion attacks on other types of plastic beverage container, as this bill does.  This latest injunction basically broadens the scope to any type of alcoholic beverage that might be packaged in plastic.

    The bill says it would apply to the commercialization of not just beer and the alcoholic drink mixtures covered in the injunction — liqueurs (cordials, schnapps), compound spirits, compound alcoholic drinks, caiparinhas, batidas (tropical fruit juices mixed with alcohol), but also soft drinks[Temas Observation: It’s noteworthy that the bill omits water, fruit juices and fruit drinks, which are a growing portion of plastic packaging waste.]  It would specifically cover PET packaging for such beverages, but also “other types of plastic packaging.” 

    The bill would ban the commercialization of covered beverages in plastic packaging in SP until the following is done in sequence:

    The bill envisions stiff penalties: a R$100 fine per package commercialized in violation of these requisites and seizure of the offending merchandise.

    Does this bill have a chance of passing?  Too early to tell yet, of course, but I’m expecting a big fight from industry.  SP is the home to much of Brazil’s packaging manufacture, transformation and filling industries (including the headquarters and some of the largest production facilities of the beverage giant Ambev), to the packaging industry association, ABRE, to key plastics trade associations (Abipet, Abiplast), and their ally, FIESP, Brazil’s most powerful industry federation.  Probably the only major player involved by this bill not headquartered in SP is the Brazilian Association of Non-Alcoholic Drink Industries (ABIR) (which is headquartered in Rio), but I am certain they will be keeping a close eye on this bill.


    * Under Brazil’s 1988 Constitution, the Public Ministries (MPs) at the federal, state and large city levels are empowered to protect the public interest through special investigations and legal actions, including the ação civil pública, where the MP can take on anyone it feels is not complying with current law in specific areas (environment is one), even if it is an environment agency.

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