Have you handed over the packaging to the third party?
For an answer to the question, please see the following excerpt from our FAQ page.
If retail packaging is placed on the German market on behalf of a (retail) company, using that company's own brand and/or name without naming the filling company on the packaging, the party that orders the filling is considered to be the producer/initial distributor if the packaged goods are also handed over to the ordering party. The filling party is not the producer/initial distributor in this case.
The registration and system participation requirements depend on the status as a 'producer' or 'initial distributor' within the meaning of the Verpackungsgesetz (Packaging Act). Within the meaning of the Verpackungsgesetz, a producer/initial distributor is any party that is the first to commercially hand over retail and/or grouped packaging that is filled with goods and that typically accumulates as waste with private final consumers (private households or comparable sources of waste generation, such as administrative offices, restaurants or hospitals) to a third party in Germany with the intent that it be distributed, consumed or used (section 3 (9) VerpackG). This is generally the manufacturer of the packaged product. This party must register as a producer with the Packaging Register and ensure the relevant packaging participates in a system.
Section 3 (9) VerpackG provides for an exception, but this exception only applies if the goods' packaging
- is filled because a third party commissioned/ordered the filling and
- the filled packaging is handed over to that third party and
- only the name and/or brand of that third party is visible on the packaging.
In such cases, the ordering party must undertake system participation and registration and is considered the producer within the meaning of the Verpackungsgesetz.
The precise information shown on the packaging is the deciding factor. It is only in cases where the contract packager cannot be ascertained from the packaging, that the producer status is transferred to the ordering party. Labelling (e.g. as may be required under food law) that does not indicate the name (identifying marker) does not constitute naming for the purposes of section 3 (9) VerpackG. The registration number for the LUCID Packaging Register qualifies as an identifying marker, but not as indicating a name.
If the name of the contract packager appears, e.g. with the phrase "manufactured for [name/brand of retail company]", it is the filling party/contract packager who is the initial distributor/producer and therefore the party under obligation under the Verpackungsgesetz.