The product design phase, crucial for its environmental impact throughout its lifecycle, is now under the scrutiny of French and European legislators.
French law has defined principles and obligations for eco-design through Article 72 of the AGEC law published in February 2020. As for the European Union, it aims to strengthen requirements and better regulate eco-design with the proposal for the Eco-design for Sustainable Product Regulation (ESPR) published on March 30, 2022.
These two texts establish a legal definition of eco-design and have direct consequences for all producers and market players in Europe, especially those in sectors identified as priorities for environmental protection, such as apparel.
‍In this article, we present all the new obligations related to the eco-design of your products arising from Article 72 of the AGEC law and the ESPR regulation, such as prevention and eco-design plan or digital product passport.
Ecodesign in France: Article 72 of the AGEC law and its prevention and ecodesign plan
‍France was among the first countries to propose eco-design principles for all products through the AGEC Law (Anti-Waste for a Circular Economy), enacted in February 2020. Article 72, especially Art. L. 541-10-12, thus requires producers to implement an ecodesign plan with three objectives:
- Reduce the use of non-renewable resources.
- Increase the use of recycled materials.
- Enhance the recyclability of products.
A "producer" is defined by the law as "any natural or legal person who designs, manufactures, handles, processes, sells, or imports products that generate waste or elements and materials entering their production."
The prevention and ecodesign plan imposed by the AGEC law must be developed for five-year periods, including reviews and lessons from previous plans. It can be individual, common, or developed by eco-organizations for their sector. In all cases, eco-organizations receive all sector plans and create a public synthesis.
Regarding the TLC sector (apparel, household linens, footwear), producers had until July 31, 2023, to submit their prevention and eco-design plan to Refashion. The eco-organization planned to publish a synthesis in late 2023. Templates for prevention plans and a writing guide are available on the Refashion website.
Players in the textile, fashion, and luxury sectors in France are also required to comply with other obligations related to the AGEC law: find on our blog explanations of Article 13 of the AGEC law and its QCE sheet, or the presentation of the new Triman labeling for the apparel and footwear sector.
In addition, brands will soon be subject to the European ESPR regulation on eco-design for sustainable products.
Objectives and enactment schedule of the European Ecodesign for Sustainable Product Regulation (ESPR)
‍At the European level, eco-design principles were first introduced for energy-related products in 2009 within the directive establishing a framework for the setting of ecodesign requirements for energy-related products.
The ESPR regulation aims to replace this directive and extend its measures by defining a general framework for promoting ecodesign. It applies to all products in the European market, except for food, medicines, plants, animals, and human products.
The ESPR regulation defines areas of action and basic principles, then delegates power and responsibility to the European Commission to adopt delegated acts to specify these topics in practice. Certain sectors identified as priorities by the Commission due to their particularly significant environmental impact, such as apparel or furniture, will be the subject of the first texts.
Note that industries stakeholders have the option to submit "self-regulation measures" validated by companies representing at least 80% of the market share before the publication of a delegated act, meeting the goals outlined in the regulation. These measures would then replace the delegated act.
The operational realization of this regulation will only be known upon the adoption of delegated acts by the European Commission or the submission of self-regulation measures.
After the publication of each delegated act, industries will have 18Â months to adapt to the new eco-design requirements. However, the starting date of the ban on destruction of unsold fashion products is already set: it will be 2 years after the ESPR enactment.
A provisional agreement has been reached in early December 2023 between the European Parliament and the Council. They will now have to formally adopt the text they have agreed on for the regulation to enter into force. Once adopted, the Commission will have an initial 6-year period to publish delegated acts. These will come into effect if the European Parliament or the European Council does not express objections within 3 months after being notified.
The ESPR regulation is part of a wave of CSR regulations underway in the European Union. To learn more about other relevant texts, please refer to this article.
The 3 key measures of the European proposal for the Ecodesign for Sustainable Product Regulation (ESPR)
‍The ESPR regulation proposes three main areas of action:
- The definition of a general framework for promoting ecodesign
- Consumer information, especially through the creation of a mandatory digital product passport
- A ban on destruction of unsold textiles and footwear products
The general framework for promoting ecodesign defined by the ESPR regulation
‍The first objective of the regulation is to define a framework for the implementation of concrete ecodesign measures by the European Commission.
Ecodesign is defined here as "the integration of considerations related to environmental sustainability into the characteristics of a product and the processes implemented throughout the product's value chain."
The regulation proposes a list of 14 action areas for the ecodesign of products:
- Sustainability
- Reliability
- Reusability
- Improvability
- Repairability
- Maintenance opportunities
- Presence of concerning substances
- Energy consumption
- Efficient use of resources
- Presence of recycled content
- Remanufacturability
- Opportunities for material valorization
- Environmental impacts
- Planned waste production
By defining the concept of ecodesign, these criteria are at the heart of the ESPR regulation: their improvement and information about them should be the ultimate goal of all measures to be taken by the Commission.
The regulation also specifies that measures aimed at improving these criteria should not, in return, disproportionately affect the competitiveness of economic actors, the cost of products, or their functionalities. SMEs can receive special assistance to implement these measures.
Consumer Information: ESPR and the Digital Product Passport
‍The second area of action proposed by the European ESPR regulation is the sharing of information with consumers regarding ecodesign criteria, notably by developing a mandatory digital product passport.
The product passport is defined here as a 'set of data specific to a product [...] accessible electronically [...] and includes the information [provided by delegated acts adopted under the ESPR regulation].'
The ESPR regulation invites the Commission to adopt delegated acts to define, according to sectors and products, the display obligations for eco-design information to consumers. For example, in some sectors, the following must be published:
- General product information: reference number, composition, weight, traceability of all manufacturing stages.
- Information on product use, maintenance, and repair to reduce the product's impact on the environment and enhance performance according to the criteria mentioned above.
- End-of-life treatment information.
- Information related to hazardous and polluting substances (according to a list established by the Commission), including the name of substances, their location, their concentration, and instructions for safe use.
- All other information related to the environmental performance of the product: carbon footprint, eco-score, and more.
Furthermore, delegated acts must specify display modalities by imposing readability criteria or mandatory mentions. They must ensure that this information is accessible directly on the product (mandatory for information related to hazardous substances) or, as appropriate, on its packaging, labels, user manual, website, or the product passport.
The goal of this initiative is to facilitate product traceability because the product passport will identify each product and each actor in the value chain by a unique identifier. The European Commission will keep a register of these identifiers to facilitate checks.
The modalities for sharing this information, especially which actors must integrate information into the product passport, who can access it, or the period of availability of information, must be specified by delegated acts. These acts will also specify whether product passports will identify products on a model, lot, or item scale.
The ESPR regulation ban on destruction of unsold textile and footwear products
The third area of action proposed by the European regulation on eco-design for sustainable products (ESPR) is the regulation of the treatment of unsold goods, particularly the fight against product destruction.
The final version of the law introduces a ban on destruction of unsold fashion goods that will start 2 year after the ESPR enactment. There will be a derogation for small companies and a 6-year transition period for medium companies.
The regulation proposes the adoption of delegated acts requiring producers to publish the number of discarded products, the reason, and the chosen treatment method – from reuse to destruction. These same acts will prohibit the destruction of products in other sectors than fashion when the environmental impact is deemed too high.
Responsibilities, Controls, and Sanctions in Case of Non-compliance with ESPR Regulations
While leaving it to the Commission and the member states to define the applicable sanctions in case of non-compliance with ecodesign principles, the ESPR regulation proposal outlines the responsibility relationships among economic actors and control procedures.
Every manufacturer will have to issue a compliance declaration indicating adherence to the ecodesign requirements of the ESPR regulation, enabling the mandatory CE marking on products. This marking must be visible, legible, and indelible.
Importers and distributors are considered manufacturers when marketing products under their brand name or when significantly modifying the products.
Furthermore, throughout the value chain, importers and distributors will be responsible for verifying product compliance.
The final marketeer will additionally bear the responsibility of providing the product passport and labels visibly. These obligations also apply online.
Finally, delegated acts will specify the control modalities for compliance with ESPR directive obligations (e.g., minimum number of checks per sector).
Each state will designate a "notifying authority" (e.g., customs authorities) empowered to request accredited evaluation bodies to inspect products.
In case of non-compliance with the controlled products, authorities can impose corrective measures and prohibit their sale.
