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EU - Commission presents legislative package under Sustainability Products Initiative - 12 April 2022
On 30-Mar-22, the European Commission presented a legislative package for negotiations with Parliament and the Member States that proposes to enable the Commission to “green” nearly all physical goods, boost circular business models and “empower consumers for the green transition”.
Background and context
Under its Sustainability Products Initiative (SPI)* the Commission released a legislative package on 30-Mar-22 that is introduced by a headline 'communication on making sustainable products the norm'. The four central texts of the package are:
A Proposal for Ecodesign for Sustainable Products Regulation (ESPR) - discussed below - which would replace the EcoDesign Directive (2009/125/EC) and apply to nearly all physical goods, establish a framework for setting performance and informational eco-design requirements in Commission delegated acts, introduce a Digital Product Passport and mandate transparency requirements at all stages of the distribution chain, including online marketplaces, as regards the destruction of unsold goods.
Two proposals directly addressed at the products with the most significant environment and climate impacts: An EU Strategy for Sustainable and Circular Textiles which includes eco-design requirements, clearer information, a digital product passport and a mandatory EPR from 2023, as well as a Proposal for a revision of the Construction Product Regulation.
A Proposal for a Directive (amending consumer protection related directives) to empower consumers for the green transition through better protection against unfair practices and better information: It proposes new consumer rights and to restrict misleading environmental claims (geenwashing), early obsolescence and unverified sustainability labels.
Further initiatives under the SPI are expected later in 2022, notably on Substantiating Green Claims and on the Right to Repair for which a public consultation is open until 5-Apr-22.
* The SPI is stipulated by the Mar-20 CEAP which is part of the EU Industrial Strategy and follows up on the Dec-19 European Green Deal - “the growth strategy to transform the EU into a fair and prosperous society, without net emissions of greenhouse gases in 2050”. Commission initiatives related to the SPI include the Jun-21 draft Regulation on General Product Safety and the Feb-22 proposal on the Corporate Sustainability Due Diligence.
Key provisions of the proposed "Ecodesign for Sustainable Products Regulation (ESPR)"
Legal basis and aims of the ESPR: On the basis of Article 114 of the Treaty on the Functioning of the European Union - which relates to the functioning of the internal market - the ESPR aims to
improve products that “generate unnecessary adverse environmental impacts”, and
contribute to EU industrial policy by boosting the supply of and demand for sustainable products as well as the sustainable production of intermediate goods.
Subject matter and scope (Art. 1): The ESPR establishes a framework for ecodesign requirements for “any physical good placed on the market or put into service, including components and intermediate products”, except foods, medicines and plants. The Commission will launch a consultation on a detailed list of in-scope products in late 2022 which is expected to cover furniture, mattresses, tires, detergents, paints, lubricants and intermediate products such as iron, steel and aluminium.
Consistency of the ESPR with existing policies: The proposed ESPR will “only apply to products not covered by existing legislation. or when legislation does not sufficiently address the sustainability of those products”. If the latter is the case and conflict arise between texts, the following principles apply:
provisions specified in delegated acts are overruled by those specified in directives or regulations, and
the principle of lex specialis derogat legi generali applies (specific rules prevail over general rules).
Note: Energy Labelling Regulation (EU) 2017/1369 will continue to apply in parallel to the proposed regulation which “means, for instance, that as a principle [energy-related products] must only bear the energy label specified under the Energy Labelling Regulation”.
Ecodesign requirements (Chapter II): The Commission is given broad powers to establish Commission delegated acts that establish performance related and/or informational ecodesign requirements to improve or inform about the following product aspects:
[product lifespan:] (a) durability; (b) reliability; (c) reusability; (d) upgradability; (e) repairability; (f) possibility of maintenance and refurbishment;
[hazardous substance content:] (g) presence of substances of concern;
[energy efficiency:] (h) energy use or energy efficiency;
[resource circulation:] (i) resource use or resource efficiency; (j) recycled content; (k) possibility of remanufacturing and recycling; (l) possibility of recovery of materials; (n) expected generation of waste materials.
[environmental footprint:] (m) environmental impacts, including carbon and environmental footprint;
Digital Product Passport and Product Passport Registry (Chapter III): Products that are subject to informational requirements may only be placed on the market or put into service if a Digital Product Passport is available on a data carrier that is connected to the product (or batch or item) via a unique identifier that is physically present on the product, packaging or documentation. The data carrier and unique identifier must be compliant with ISO/IEC 15459-2:2015 and feature unique operator and facility identifiers. The product related information must use open standards and inter-operable interfaces.
The Commission shall set up a Product Passport Registry that stores information included in the product passports and is connected with the EU Customs Single Window Certificates Exchange.
Labels (Chapter IV): The ESPR mentions three cases:
If labels are required by delegated acts, the acts must specify a detailed labelling specifications and requirements. Moreover, the economic operator placing the product on the market must ensure that each individual product is labeled or deliver printed labels or digital copies to the dealer free of charge within 5 working days of the dealer's request, at the latest (Art. 26).
In case energy performance class labels for energy-related products are required, the Commission may establish a new label [only] if new requirements cannot be incorporated into the current energy label [Regulation (EU) 2017/1369 LID 3790].
If labels are not required by delegated acts, products that display “mimicking labels” - i.e. labels that are likely to confuse customers – may not be placed on the market or put into service. The Commissions factsheet on Empowering Consumers notes that sustainability labels which are not based on an independent third party verification system established by public authorities will be banned, and that currently only 35% of sustainability labels in the EU* require specific data to prove compliance. [*the factsheet mentions 230 voluntary ecolabels, 901 food labelling schemes, and 100 private green energy labels].
Self-regulation measures (Art. 18): Two or more economic operators may submit a “self-regulation measure” (referred to as a 'voluntary agreement’ in the current EcoDesign Directive 2009/125/EC) if their market share by units of products covered by the measure is above 80%.
Micro and SME enterprises (Art. 19): The Commission shall “take into account initiatives which help SMEs to integrate environmental sustainability aspects including energy efficiency in their value chain” and “accompany [delegated] acts with guidelines covering specificities of SMEs”. Member States shall “help SMEs apply ecodesign requirements” and ensure “the availability of one-stop shops or similar mechanisms” and may provide SMEs with financial support, etc.
Destruction of unsold consumer products (Art. 20): An economic operator that discards unsold consumer products directly, or on behalf of another economic operator, shall disclose on a freely accessible website i.a. the number of unsold consumer products discarded by type and the reasons for the discarding of products, etc. The Commission is empowered to adopt delegated acts that prohibit economic operators to destroy unsold consumer products. This Article (20) shall not apply to SMEs unless otherwise decided by the Commission.
Obligations of online marketplaces and online search engines (Art. 29): The cooperation and disclosure obligations are specified and linked to market surveillance regulation (EU) 2019/1020 (Art. 7.2), the yet to be published Digital Services Act Regulation and General Product Safety Regulation.
Conformity of products (Chapter VIII): For the purposes of compliance and verification of compliance with ecodesign requirements, tests, measurements and calculations shall be made using reliable, accurate and reproducible methods that take into account the generally recognized state-of-the art methods. The Commission may require the use of online tools which shall be freely accessible for economic operators.
To ensure coherence with other Union law, the conformity assessment procedures should be chosen from among the internal production control module included in this Regulation and the modules included in Decision 768/2008/EC.
The CE marking will indicate that a product complies with ESPR. The Commission is enabled to adopt alternative conformity declarations and markings.
France - Decree setting minimum share of reusable packaging published - 11 April 2022
The decree sets the minimum proportion of reused packaging for 2023 to 2027 and provides obligated producers with the possibility to rely on their PRO to meet the re-use obligation. PROs must spend at least 5% of their recycling fee revenues to develop re-use, also for packaging not covered by their approval [i.e. industrial and commercial packaging].
The decree implements the Environmental Code’s Art. L541-1 I and III** (as amended by the AGEC Law) which requires “France [to increase] the share of reused packaging put on the market compared to single-use packaging, so as to reach a proportion of 5% of reused packaging … in 2023, expressed in sales units or sales unit equivalent, and 10% … in 2027”.
The provisions in detail
From 1-Jan-23, a new subsection in the regulatory part of the Environment Code entitled “Reuse of packaging” will come into force. It: -
Reusable quota complements SUP packaging reduction target of ‘3R Decree’
- applies to household and non-household packaging of any material, except for a) packaging whose reuse is prohibited for health or safety reasons and b) - until Jan-25 only - packaging of certain rural and fishery products (covered by the Agricultural and Sea Fishing Code Art. L. 641-1 to 13).
- clarifies that packaging qualifies as “reused” if it is re-used at least once for an identical purpose and that the reuse is a) organised by or on behalf of the producer or b) pertains to the refill of a bulk service packaging at POS or c) a refill at the end-users home (Art. R.541-350 II 2).
- introduces an increasing target share for reused packaging as % of total POM by packaging sales units or sales unit equivalents. The obligation will be phased in: until end 2024 it will apply only to companies with a turnover above EUR 50 million [Note: Unlike the draft, the final text does not exempt producers that POM less than 10,000 sales units p.a.]
- notes that the target share applies to primary, secondary, or tertiary packaging and is measured in units, unless the producer can justify the use of a capacity equivalent. In this case, the capacity equivalent of 1 unit is 0.5 litres for liquids and 0.5 kg for non-liquids (Art. R. 541-350 IV).
- requires producers to meet the reuse target for their own products individually or collectively.
- requires approved packaging PROs that implement this obligation to: -
- eco-modulate recycling fees (to encourage reuse);
- develop and financially support re-use solutions - with at least 5% of their recycling fee revenues as required by Art. L. 541-10-18(V) - also for packaging not covered by their approval [i.e. industrial and commercial packaging].
As regards plastic packaging, the mandatory quota for reusable packaging complements the May-21 “3R Decree” which notably requires marketers to reduce the tonnage of plastics POM in single-use packaging by 20% compared to 2018, whereby at least half of this target ‘must be obtained by recourse to re-use and réutilisation of packaging’***
* For example cross-cutting provisions applicable to all 22 product groups subject to EPR, the repairability Index for EEE, etc.
** Art. L541-1 III: To achieve the national objectives for the reuse of packaging set in 1 ° of I, a decree defines the minimum proportion of reused packaging to be placed on the market annually in France. These proportions may be different for each flow of packaging and product categories to take into account the margins for progress existing in each sector, the need to respect the environment and the requirements of consumer hygiene or safety. To this end, people belonging to a sector of activity concerned and collectively placing on the French market each year more than a certain quantity of packaging are required to comply on average with this minimum proportion of packaging reused for their own products,
***as defined in Art. L541-1-1:-
- Reuse (Réemploi): substances, materials or products that are not waste are used again for an identical use for which they were designed.
- Reutilisation (Réutilisation): substances, materials or products that have become waste are used again. Ademe clarifies that ‘réutilisation’ involves no processes other than control, cleaning and repair. Still, disassembly maybe involved, as a widely used example of ‘réutilisation’ are wooden pallets whose planks are being ‘réutilised’ as furniture.
- Burger King becomes first fast-food restaurant in UK to trial re-usable and returnable packaging; Burger King UK has become the first quick-service-restaurant corporation in the UK to trial a new range of re-usable and returnable packaging for its burgers and sides.
- Data reveals record year for aluminium packaging recycling; The UK’s aluminium packaging recycling rate hit a record 68% in 2021, with more than 156,000 tonnes collected for recycling (a 3% rise year-on-year), according to annual data published by the Environment Agency.
- Advanced chemical recycling: Connecting the dots to circularity; The flexible packaging value chain, in addition to continuing work on enhancing mechanical recycling processes, is also working on commercialising chemical recycling. In this interview, Sirt Mellema, CEO of Fuenix Ecogy Group, shares his insights on how advanced chemical recycling can support the needs of the flexible packaging sector and helps us understand the current challenges, and future trends.
- Smurfit Kappa creates ‘Better Planet’ detergent box; In line with the company’s Better Planet initiative, Smurfit Kappa has introduced a new packaging solution for detergent pods and capsules.
- Government lacks data to assess scale of waste crime in England – NAO; Government does not have the data it needs to assess the scale of waste crime in England, and the incentives for criminals to enter the waste market have increased, according to the National Audit Office (NAO).
- Diageo partners with ecoSPIRITS for circular packaging solutions; Instead of using glass bottles, the branded and re-useable 'eco-Tote' containers will be sent to bars; which can then be returned to Diageo when empty for refilling.
- EU not on track to halve non-recycled municipal waste by 2030 – EEA; Even if all EU Member States reach their binding 60% recycling target by 2030, current trends indicate that the amount of residual municipal waste might exceed 80 million tonnes in that year — missing the target by more than 23 million tonnes, according to analysis by the European Environment Agency.
- EPA creates €11.7 million fund for environmental research projects in Ireland; Ireland’s Environmental Protection Agency (EPA) has offered €11.7 million to new research projects, inviting proposals from the research community to “address climate change and other emerging, complex environmental problems” through research that supports the “development and implementation of environmental policies in Ireland”.
- Net Zero Barometer Report: 1 in 5 UK businesses prioritising carbon reduction; BSI’s annual Net Zero Barometer Report shows that almost half (49%) of UK senior decision makers are prioritising growth in their organisation while one in five (20%) are prioritising the reduction of carbon emissions.
- European Investment Bank commits up to $20m to to fight plastic pollution in Asia; Singapore-based investment management firm, Circulate Capital, has announced that the European Investment Bank (EIB) has committed up to $20 million to the Circulate Capital Ocean Fund I-B (CCOF I-B).
- Study finds recycling metal packaging reduces GHG linked to production by up to 60%; Metal Packaging Europe says that recycling metal packaging “reduces the greenhouse gases (GHG) linked to the production of steel and aluminium by around 50% and 60% respectively”, according to a new Life Cycle Assessment (LCA).
- US sees decline in post-pandemic plastic recycling volumes; In 2020, over 2 million tonnes of post-consumer plastics sourced in the US were recovered for recycling, down 5.7% compared to 2019, according to the 2020 US Post-consumer Plastic Recycling Data Report.
- L’Oréal announces creation of new circular innovation fund; L’Oréal has announced the creation of the Circular Innovation Fund in response to what it calls the “increasing pressure on natural resources and the urgent need to scale-up circular economy solutions”.
- Veolia launches its first renewable fuelled fleet; Veolia has announced the launch of a brand new fleet of waste and recycling collection vehicles solely powered by renewable Hydrotreated Vegetable Oil (HVO).
- Co-op to ditch use-by labels on yoghurts to combat food waste; The retailer said that it will replace use-by label with best before dates to guide shoppers. The Co-op cited data from WRAP which said that 50% of yoghurts are thrown away in unopened packs. WRAP also said that 70% of all the yoghurt wasted in the home was due to them “not being used in time” with the date label the reason.
- Fashion Task Force announces Manifesto for Regenerative Fashion; Prince Charles’ Sustainable Markets Initiative (SMI) Fashion Task Force has announced its Manifesto for Regenerative Fashion. Included in the manifesto is a €1,000,000 investment programme in the Himalayas aimed at restoring wildlife and sustainable farming to what they say is a “degraded landscape”.
- Global shipping firm will no longer transport any plastic waste aboard its ships; Global shipping and logistics company, CMA CGM Group, will no longer transport plastic waste cargo aboard its ships, following the One Ocean Summit this year.
- Earth Day investment is important, says Plastics Industry Association; “This year’s Earth Day theme of investing in our planet could not be more appropriate”, said Patrick Krieger, vice-president for sustainability at PLASTICS. “The plastics industry has invested and continues to invest billions in new recycling technologies and programs at home and abroad, innovating to increase the recyclability of the products we make and including more recycled content at a record pace.”
- African Development Bank Group to launch trust fund for the circular economy; The establishment of a €4 million Africa Circular Economy Facility to “drive integration of the circular economy” into African efforts to achieve nationally defined contribution (NDC) targets has been approved by the African Development Bank.
- Call to end all waste exports to address waste crime is “ill-conceived”, RDFIG says; The Environment Agency (EA) chief’s call for for an end on all waste exports has been called “ill-conceived” by the RDF Industry Group (RDFIG), which says the ban would “destroy the well-established global trade in resources recovered in the UK while doing little to address the problem.”
- “World’s first” tyres made with polyester from recycled PET bottles launched by Continental; Continental says it has become the first tyre manufacturer to launch volume production of recycled polyester yarn obtained from PET plastic bottles into passenger car tyres.
- Research grant awarded to functional coatings recycling project; A Swansea University research project aimed at bringing a circular economy ‘one step closer’, has received a £1.2 million research grant from the Engineering and Physical Science Research Council (EPSRC).
- End all waste exports to crack down on waste crime, says EA Chief; Environment Agency (EA) Chief Executive Sir James Bevan has outlined his aspirations to ban waste exports as a measure against waste criminals.
- Mars Wrigley UK claims that 97% of Easter Eggs are plastic-free; Mars Wrigley UK has made a 142-tonne reduction in packaging across its Easter Eggs and a 6-tonne reduction in plastic this Easter.
- UK government announces new crackdown on fly-tipping; Households will no longer have to pay to get rid of DIY waste under plans set out by government to change the rules that currently allows some local authorities to charge for DIY waste from households.
- UK Government announces £240 million support for hydrogen; The UK Government has today (8 April) launched a wide-ranging £375 million package of support for innovative energy technologies that will set out to strengthen the nation’s energy security.
- Prime Minister sets out UK’s plan for ‘greater energy independence’; Following rising global energy prices and volatility in international markets, the UK’s Prime Minister, Boris Johnson, has set out plans that aim to boost Britain’s energy security, which include a diverse range of nuclear, renewables and oil and gas.
- Amcor announces recycle-ready packaging for cheese; two new applications launching in Europe.
- Veolia project to unlock “unexplored” solution to produce CO2-neutral biofuel from pulp production; Veolia has launched what it claims to be the world’s largest biorefinery project producing CO2-neutral bio-methanol from a pulp mill.
- Intergovernmental Panel on Climate Change: “We are at a crossroads”; There is increasing evidence of climate action, said scientists in the latest Intergovernmental Panel on Climate Change (IPCC) report, but it says we’re still at a ‘crossroads’.
- Pilot to collect for reuse tens of thousands of bottles from London venues; £2.55m funding has been secured for the London pilot, which will see Again, a London-based clean-tech start-up, partner with Budweiser, Diageo, Biffa, Greene King and Arsenal Emirates Stadium.
- Welsh government commits to making manufacturers pay for ‘most commonly-littered items’; The Welsh government has committed ensuring companies responsible for the most commonly-littered items cover the clean-up costs.
- FPA criticises Welsh government plan to charge packaging producers for litter; The association said the move will completely exonerate the public for its role in creating litter.
- New bakery packaging concept reduces CO2 emissions by a third; According to Metsä Board, the new eye-catching packaging reduces material requirements by 25%, and carbon dioxide emissions by 34% compared to the previous packaging. At the same time, the bakery was able to reduce its use of plastic by moving away from a PE-coated board. In addition to the environmental benefits, the design of the new bakery box is said to make it quicker and easier to assemble.
- Risk of recycling ‘crisis’ as UK Government ‘deaf’ to red diesel ban concerns, says RMAS; The body representing Scottish SME resource and waste management operators says recycling services across the country are ‘under threat’ following the UK Government’s ‘refusal’ to exempt the sector from today’s (1 April) cutting of the red diesel exemption.
- New EU proposals to tackle greenwashing and boost Europe’s ‘resource independence’; The European Commission has presented a package of European Green Deal proposals that will set out to make sustainable products ‘the norm’ in the EU, boost circular business models and ‘empower consumers for the green transition’.
- Canadian government to invest in produce packaging recycling project; The Canadian government has announced an investment to help Canada’s fresh produce industry transition to sustainable food and produce packaging. Agriculture and Agri-Food Minister Marie-Claude Bibeau said the government will invest up to C$376,200 ($299,869) in the Canadian Produce Marketing Association (CPMA).
- Poll finds consumers committed to avoiding single-use plastic packaging; Half of consumers say they will try to stop buying products which use single-use plastic packaging completely over the next three years, according to a new study on fashion retailing.
- DS Smith warns of spiralling costs of energy for UK-based businesses; Wouter van Tol, head of government, community affairs & sustainability, DS Smith, said that energy costs n the UK are double that in Europe: “Like other manufacturers, we are committed to the UK, but the energy to deliver goods and services here comes at nearly double the cost of that in Europe. Looking ahead, businesses’ ability to invest in UK growth, UK jobs, and UK-grown green tech, could become compromised without government intervention, so we welcome the commitment to reform R&D tax credit and to cut tax rates on business investment in the Autumn.”
- Designers warn of plastic tax impact on brands and consumers; Spokespeople from two leading design agencies gave PN their opinion on how the incoming PPT will impact brands and pack design. Nick Dorman from Echo who examines what he believes are the pros and cons and Andy Trewin Hutt from Morrama who discussed PPT with the agency’s client Wagamama.