Plastic paradox: How ban enforcement puts ethical millers at a disadvantage

Bails of maize floor being offloaded from a truck. [Denish Ochieng, Standard]

Kenya has in recent years gained global acclaim for its advancements in environmental conservation, notably exemplified by the courageous ban on plastic bags.

However, despite these commendable efforts, a significant contradiction remains - the National Environment Management Authority (Nema) falling short in enforcing its own directives.

The 2017 plastic bag ban was hailed as a pivotal moment in Kenya’s fight against solid waste pollution; however, despite the ban, some millers persist in flouting the law, endangering both our fragile ecosystem and public health.

Despite Nema’s warnings issued in November 2023 regarding the illegal use of secondary packaging in plastic bags, the continued non-compliance renders these warnings futile.

Meanwhile, while striving to adhere to principles of sustainability, ethical millers find themselves at a disadvantage. Competitors exploit regulatory loopholes, flooding the market with products packaged in cheap plastic.

Moreover, the disparity in pricing between products packaged in plastic and those complying with the ban exacerbates the issue.

Certain millers prioritise profit over environmental responsibility, opting for cheaper plastic packaging despite the higher costs of sustainable alternatives.

This unfairly penalises ethical producers, pushing them aside in a market where price outweighs principles.

David Kimani, sustainability and environmental advocate, has told the publication that only through decisive action can Kenya uphold its commitment to a cleaner, greener future, adding that Nema should be fair and transparent in its dealings.

“The discrepancy in pricing between plastic-packaged products and eco-friendly alternatives highlights systemic issues within our regulatory framework,” he said. “Nema must step up and enforce the ban consistently to level the playing field for all stakeholders,” Kimani said.

Mr David Ongare, Director overseeing environmental compliance, enforcement, and field operations at Nema, recognises the ongoing efforts in enforcement.

However, he notes that some millers are skeptical about using plastic due to their duty fee which is higher while acknowledging that discussions are being handled at higher levels of government.

“The last two meetings with the association took place around Dec 2023 and another beginning of 2024. This is because a number of millers are pushing to use plastic for secondary packaging as opposed to primary packaging. This is the bone of contention as they say duty on paper is high,” he said.

He observed that in the December 2023 meeting between Nema and the Cereal Millers Association (CMA), both parties reached an agreement to gradually deplete their existing plastic stockpiles and discontinue the utilisation of plastic for packaging purposes.

“Enforcement is a continuum, from one extreme there is guidance and dialogue then compliance assistance, this is to demonstrate goodwill and give clients an opportunity to comply, and if these avenues are exhausted without the required change, hard enforcement kicks in,” he stated.

Planet Action has learned that Nema had instructed all millers to transition to alternatives by March. During a meeting with the Kenya Association of Manufacturers and CMA, millers were informed that the compliance deadline had passed and were urged to adopt non-plastic packaging.

On February 22, Nema sent a letter to millers via the KAM Chief Executive Officer Anthony Mwangi, urging them to transition to alternatives, noting that the time for dialogue and guidance had already passed.

“Plastic balers especially those used by the flour milling sectors are strictly prohibited, millers are thus required to fully revert to the use of the traditional Kraft paper (which are already available in the market). This takes effect with immediate effect noting the sufficient transition time since the directive of 16th November 2023,” reads a letter sent to KAM Nema Director General Mamo B Mamo.

The letter was copied to the Principal Secretary of the Ministry of Environment, Climate Change, and Forestry, and the Managing Director of the Kenya Bureau of Standards.

Dr Thuo Mathenge, the founder of Bradegate Food Processing Company, underscored the crucial importance of maintaining principles of fairness and justice across all sectors of the economy. He stressed the importance of consistent enforcement of regulations, especially in the context of environmental conservation in relation to industrialisation.

“While I fully recognise the significance of environmental conservation, it’s equally vital to ensure that regulations are uniformly enforced across all players in the industry,” Dr Thuo said. He highlighted the collective responsibility of the business community to prioritise regulatory adherence and actively contribute to environmental preservation endeavors.

“We must prioritise adherence to regulations and actively contribute to environmental protection efforts. Government agencies must take swift and firm measures to address any infractions and uphold standards across the industry,” he emphasised.

In November of last year, President William Ruto, speaking during the official launch of the Third Session of the Inter-Governmental Negotiating Committee on Ending Plastic Pollution in Nairobi, emphasised that “addressing plastic pollution is pivotal to advancing efforts against climate change. He urged producers and innovators to reconsider plastic products and packaging, aligning them with the principles of reuse, refill, and
repair.

A miller who sought anonymity has voiced his exasperation over Nema’s shortcomings in the enforcement of plastics bags.

The miller pointed out that those who flout Nema directives often sell their products at inflated prices, reaping substantial profits, while ethical millers bear the brunt of the consequences, allowing lawbreakers to prosper unchecked.

“We are doing our best to comply with environmental regulations, investing in eco-friendly packaging despite the higher costs. Yet, our competitors continue to use plastic, undercutting us in the market,” Miller said.

He noted that as a miller committed to eco-friendly practices, it’s frustrating to compete in a market where unethical competitors skirt regulations with impunity adding that Nema’s failure to act not only harms the environment but also stifles innovation and fair competition.

A recent supermarket investigation reveals continued plastic packaging use by certain companies, perpetuating economic disparities within the milling industry. Ethical millers urge Nema to crack down on violators, ensuring a level playing field for all.

The supermarket visits further highlight that millers adhering to Nema’s regulations offer lower prices compared to those using plastic packaging. This suggests that the choice to use plastic packaging is driven by profit rather than any arguments about food costs or duty structures.

In Nema’s response to a similar complaint brought to their attention by The Nairobian Defender, the authority revealed that no miller would be allowed to use plastic bags after a June 30 deadline.

“We incur a lot on non-plastic packaging but end up contending with those using the cheap, banned ones. Non-compliant competitors are taking advantage of Nema’s reluctance and complicity,” they said.

“There has been no shift on regulatory requirements. Use of plastics for primary packaging of cereals and other food items is allowed for various practical reasons including safety and product integrity. The use of balers for secondary packaging is not allowed as there are feasible alternatives,” Ongare told Defender.

Ongare said the millers have up to the end of June to clear the stocks in non-biodegradable balers.

“Failure to comply will lead to hard enforcement that may include prosecution. We have had contact group meetings with both the Cereal Millers Association and the Kenya Association of Manufacturers to clarify on requirements. Their argument has been on the (high) duty on paper, an issue which was being handled at the relevant echelons of government,” Ongare said.