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Matthew Vella
The Maltese government is facing challenges from the legal office in which Nationalist MEP Simon Busuttil is the senior consultant on European law, after their clients were faced with enforcement action following the confiscation of thousands of Red Bull energy drink bottles by the Malta Environment and Planning Authority officials and the police force.
The operation resulted in a confiscation of 140,000 bottles and 2,000 cans, all banned under the Non-alcoholic Beverages (Control of Containers) Regulations, which prohibits soft drinks from being imported, traded or consumed in non-refillable packages, such as cans or glass bottles which are not part of a deposit-and-return scheme.
A judicial protest noted that the actions were “disproportionate, illegal, abusive and causing substantial damage” to their clients Logic International, which import Red Bull.
British Socialist group MEP member Neena Gill, wrote to Environment Minister George Pullicino to protest against the confiscation of the energy drink bottles after personally witnessing the police operation whilst visiting Malta. The MEP has also written to European Commissioner for the Internal Market and Taxation Fritz Bolkestein to investigate the matter.
In comments to MaltaToday, Gill said she was shocked to witness the confiscation of energy drinks by the Maltese Government: “An Austrian importer was treated unfairly and aggressively when he arrived in the Maltese port, receiving no prior warning that the energy drinks were not allowed into the country.
“Malta must look into better ways of protecting the environment of their beautiful country. A collection and recycling system of glass bottles would be a longer-term answer to this problem. It goes against the EU Principles of Free Movement of Goods if they prevent importation of energy drinks and it creates a bad image for Malta in relation to their trading partners in Europe.”
Neena Gill has written to George Pullicino, Maltese Minister for Rural Affairs and the Environment, to ask for a reassurance that energy drinks will not be confiscated in the future.
Gill cited Commission Regulation 1224/03, which states that non-alcoholic beverages presented as energy drinks in 250ml cans, have a different customs code which differentiates them from common soft drinks. “The Commission states that energy drinks are not classified as soft drinks. The confiscation of energy drinks is clearly an abuse of the Maltese derogation.”
In Malta, energy drinks are still grouped under the general umbrella of the soft drink, namely a ‘non-alcoholic beverage with less than two per cent of alcohol’, placing Malta’s regulations at loggerheads with European legislation, which differentiates between energy drinks and soft drinks. This was in fact the reason why the police operation, which scooped up 140,000 bottles, included a reported two and a half containers of Red Bull energy drink bottles.
MEPA has defended its actions, saying that Red Bull is covered by the Non-alcoholic Beverages (Control of Containers) Regulations, which prohibits soft drinks from being imported, sold or consumed unless they are not packed in a refillable glass container or dispensed from a keg.
The legal notice was drafted back in 1998 under the Environment Protection Act. Apart from keeping an estimated 80 million plastic bottles outside the waste stream, the regulations were aimed at protecting the soft drinks giants, namely Farsons and General Soft Drinks, ahead of EU accession, which would have prompted the sprouting of parallel traders. Malta managed to negotiate with the EU for the ban to remain in place until 2007.
Late enforcement
Since the introduction of the legal notice, there has been reportedly considerable pressure placed by the main soft drinks companies on the government for the enforcement of the legal notice.
Despite lobbying for the full enforcement of the regulations, for the past eight years energy drinks importers paid the government Lm5,000 for every container they imported into the island, having had unfettered rights up until last week’s operation which left many importers irate at the surprise sting.
So why does the operation come so late in the day after eight years of non-enforcement? The removal of levies following EU accession is a case in point. But MEPA spokesperson Sylvana Debono is sticking to the interpretation of the Regulations, which also cover Red Bull – an energy drink which in Malta remains recognised as a soft drink.
“At some point we had to start,” MEPA spokesperson Sylvana Debono told MaltaToday, who justified the action enforcing the legal notice. “This is arguably the first and certainly not the last time we shall implement the legal notice. There is a time when a decision has to be taken.”
The events which prompted the lightning strike on seven different localities also came just a day after a new association, the Malta Association of Soft Drinks Producers (MASDP), was set up under the auspices of the Federation of Industry.
The association, whose chairman and deputy chairman is Farsons director Louis Farrugia and General Soft Drinks general manager Maria Micallef – authorised bottlers for Pepsico and Coca-Cola respectively – held its first AGM days before the police swoop, in which it called for action to be taken on the trading of illegal, canned soft drinks.
The association was created two weeks following a reported influx of canned soft drinks, such as Coca-Cola and Tango Orange, banned from being traded or consumed under the Non-alcoholic Beverages regulations.
In comments to MaltaToday at the time, Farsons company secretary Anthony Tabone acknowledged the existence of the illegal cans on the market, saying the firm was concerned mainly because the importation of the cans constituted a breach of the law: “Since the canned soft drinks which have been spotted do not concern our products, we have not taken any steps so far, but we are also concerned commercially.”
Brian Mizzi, director of General Soft Drinks, could not be contacted. Environment Ministry spokesperson Ray Bezzina had told MaltaToday the Ministry was not aware that cans are being retailed in the local market: “I kindly ask you to provide me with further information so that we can take the matter further.”
Following the sting, MEPA announced it had taken the step to conduct enforcement “following weeks of investigations”, tentatively suggesting that the Environment Ministry was not aware of MEPA’s covert operation.
Reactions
A straight-talking Minister George Pullicino has now stated that it is time to “stop talking and act”, saying that importers knew about the existence of the law, and that they made “money from what they imported while taxpayers paid for the disposal of cans and bottles they imported.”
Energy drink importers told MaltaToday the government has conveniently forgotten that they collected millions in levies from the importation of the energy drinks prior to EU accession. “The story has been dragging on for eight years under the pretext of an environment regulation which is only there to protect the soft drinks industry. What about the millions of non-returnable beer bottles and cans? Don’t these also end up in the waste stream?
“We also presented Government with a proposal for a nation-wide collection scheme for all kinds of bottles – ketchup bottles, olive oil containers, wine and spirits bottles. Instead they have turned their eyes on energy drinks just because these do not have a customs code and levies are no longer paid on their importation.”
matthew@newsworksltd.com
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