Reverse Logistics: Regulatory Decrees and the Role of the States

Decrees No. 10.936/2022 and No. 11.413/2023 introduce crucial updates to the National Solid Waste Policy (PNRS), strengthening environmental oversight, social inclusion in recycling, and traceability in the production cycle

Blog produced by Flávia Marcilio and José Davi Fidalgo

As we mentioned in the last blog post, regarding Law No. 12.305/2010, which established the PNRS (National Solid Waste Policy), we will now discuss two important decrees on the subject: Decree No. 10.936/2022, which regulates the National Solid Waste Policy (PNRS), and Federal Decree No. 11.413/2023, which further expands on the PNRS.

The Regulatory Decree No. 10.936/2022 established:

  1. The National Reverse Logistics Program, integrated with the National Information System on Solid Waste Management (Sinir) and the National Solid Waste Plan (Planares), and
  2. The waste transport manifesto (MTR), a self-declared document valid throughout the national territory, aimed at ensuring the environmental monitoring of Reverse Logistics Systems.

Additionally, the decree provides specific treatment for hazardous waste and mandates that the reverse logistics system for pesticides, their residues, and packaging will be addressed in specific legislation.

Decree 11.413/2023 deepens and elaborates on Law 12.305/2010, known as the National Solid Waste Policy (PNRS). This law established the general framework for solid waste management in Brazil, including reverse logistics.

It defined the principles, objectives, and tools for implementing public solid waste policies, but left several aspects to be regulated through decrees and other complementary norms.

  • Objective: Enhance the implementation and operation of physical and logistical infrastructure for recycling, promote collaboration between reverse logistics and recycling systems, and encourage the reuse of solid waste.
  • Recycling Incentives: It promotes the use of materials with a lower environmental impact, the development of more recyclable products, and the inclusion of waste pickers and cooperatives in the recycling chain.
  • Transparency and Traceability: Implements an electronic information system (black box) to track the amount of products and packaging recycled and ensure transparency in the process.
  • Governance: Defines the responsibilities of managing entities, companies, and result verifiers, and establishes monitoring and control mechanisms.

Decree 11.413/2023 is designed to detail and operationalize the provisions of the PNRS related to reverse logistics.

  • CCRLR (Reverse Logistics Recycling Credit Certificate): Confirms the return of products or packaging to the production cycle.
  • CERE (General Packaging Structuring and Recycling Certificate): Certifies companies that invest in structured projects for the recovery of recyclable materials.
  • Future Mass Credit Certificate: Allows companies to meet reverse logistics goals in advance by investing in long-term projects.

Federal Government Ordinance

Recently, at the beginning of August, the federal government issued Ordinance GM/MMA No. 1117, which regulates Decree No. 11.413/2023 to establish criteria for the qualification of result verifiers in reverse logistics systems and initiate the first public call for registration of legal entities with the Ministry of the Environment and Climate Change (MMA).

In summary, the ordinance requires that legal entities contracted by managing entities submit a request to the MMA, which will analyze, qualify, and later publish it in Sinir. Entities responsible for managing information related to the reverse logistics system include legal entities registered under the CNPJ, as well as foreign companies authorized to operate in Brazil.

Among the provisions, verifiers must not have direct relationships with manufacturers, importers, distributors, or retailers connected to the reverse logistics system being verified, as well as representative entities, managing entities, or third parties involved in operating the system. Furthermore, verifiers must issue an annual report to the MMA, providing the results of the managing entities.

Additionally, special attention is given to verifying, validating, and authenticating the electronic invoices issued by operators and generated in the operation/commercialization of products and packaging, to ensure the effective return of recyclable materials to the production cycle for reuse.

Entities must adapt to the conditions of the Ordinance within 180 days of its publication. The qualification will be valid for 3 years from the date of the act’s publication and can be renewed for equal periods, provided that the entity submits a request to the MMA 90 days before the expiration date and continues to meet the qualification criteria.

It is important to note that a lack of qualification does not prevent result verifiers from performing their activities in reverse logistics systems, as long as they comply with state and municipal regulations.

State Regulations

Currently, 13 states have reverse logistics policies established by law: São Paulo, Rio de Janeiro, Paraná, Piauí, Pernambuco, Paraíba, Maranhão, Sergipe, Amazonas, Goiás, Mato Grosso, Mato Grosso do Sul, and Rio Grande do Sul.

This means that companies that import, manufacture, distribute, or market products and/or packaging sold in these states must comply with current legislation regarding reverse logistics, even if they are not based in those states.

On a state level, in addition to the highlight for Mato Grosso do Sul mentioned in our Environmental Law team’s alert, we also highlight the regulations developed by São Paulo.

In São Paulo, Law No. 12.300/2006 established the State Solid Waste Policy and was regulated by State Decree No. 54.645/2009. Although these regulations do not specifically address Reverse Logistics, they recognize the post-consumer responsibility of producers, importers, transporters, distributors, retailers, consumers, waste pickers, collectors, administrators, and other operators involved in any phase of solid waste management.

The SMA Resolution No. 45/2015 established guidelines for implementing and operationalizing post-consumer responsibility in the state of São Paulo.

Who is Subject

In São Paulo, those obligated to establish a Reverse Logistics system, through the return of products and packaging after consumer use, are “the manufacturers, importers, distributors, and retailers of products that, due to their characteristics, require or may require special systems for packaging, storage, collection, transportation, treatment, or final disposal to prevent harm to the environment and public health (…)” (Art. 2).

The resolution lists products and packaging sold in São Paulo that are subject to the Reverse Logistics system:

Among the products that result in waste considered to have significant environmental impact are: lubricating oil, cooking oil, automotive oil filters, automotive batteries, portable batteries, electronic products and their components, fluorescent lamps (sodium, mercury vapor, and mixed light), unusable tires, household medications (expired or unused); and

Among the packaging for products that make up the dry fraction of urban solid waste or equivalent (excluding those classified as hazardous by Brazilian law) are: food, beverages, personal hygiene products, perfumes and cosmetics, cleaning products and related items, other utensils and consumer goods, in addition to packaging containing pesticides and automotive lubricating oil.

Commitment Agreements

It is possible to enter into Commitment Agreements with the Secretariat of Environment, Infrastructure, and Logistics of the State of São Paulo (SEMIL) and the Environmental Company of the State of São Paulo (CETESB), as well as linking the renewal of operating licenses issued by the agency.

Commitment Agreements are not explicitly defined in regulations but are referred to as an option in the absence of a sectoral agreement for the product or when stricter commitments need to be established. They must be approved by the competent environmental agency.

In these cases, either party may sign an individual Commitment Agreement, and the instrument may have state-level applicability (Art. 32, Federal Decree 7.404/2010), allowing for technical and economic evaluation by the States. The Commitment Agreement is also established as an instrument of PERS (Art. 4, Section VI, State Law 12.300/2006), but without a specific definition in regulation.

Failure to comply with the Resolution may result in penalties provided for in environmental legislation, particularly in State Laws No. 9.509/1997 and No. 12.300/2006, State Decree No. 54.645/2009, and Federal Decree No. 6.514/2008.

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Letícia Marques

Letícia Marques é Head de Direito Ambiental do KLA, mestra em Sustentabilidade pela USP, especialista em Direito Ambiental pela Universidade Presbiteriana Mackenzie e pós-graduada em ESG: Diversidade & Inclusão pela FGV (Fundação Getúlio Vargas). É coordenadora e professora do curso de extensão em Direito Ambiental Empresarial do Mackenzie.