Notification Detail

Decree on consumer information on the environmental qualities and characteristics of waste-generating products

Notification Number: 2021/644/F (France )
Date received: 04/10/2021
End of Standstill: 05/01/2022

Issue of comments by: Commission,Sweden
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fr
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Message 002

Communication from the Commission - TRIS/(2021) 03643
Directive (EU) 2015/1535
Translation of the message 001
Notification: 2021/0644/F

No abre el plazo - Nezahajuje odklady - Fristerne indledes ikke - Kein Fristbeginn - Viivituste perioodi ei avata - Καμμία έναρξη προθεσμίας - Does not open the delays - N'ouvre pas de délais - Non fa decorrere la mora - Neietekmē atlikšanu - Atidėjimai nepradedami - Nem nyitja meg a késéseket - Ma’ jiftaħx il-perijodi ta’ dawmien - Geen termijnbegin - Nie otwiera opóźnień - Não inicia o prazo - Neotvorí oneskorenia - Ne uvaja zamud - Määräaika ei ala tästä - Inleder ingen frist - Не се предвижда период на прекъсване - Nu deschide perioadele de stagnare - Nu deschide perioadele de stagnare.

(MSG: 202103643.EN)

1. Structured Information Line
MSG 002 IND 2021 0644 F EN 04-10-2021 F NOTIF


2. Member State
F


3. Department Responsible
Ministères économiques et financiers
Direction générale des entreprises
SQUALPI
Bât. Sieyès -Teledoc 151
61, Bd Vincent Auriol
75703 PARIS Cedex 13
d9834.france@finances.gouv.fr


3. Originating Department
Ministère de la transition écologique
Commissariat général au développement durable
Service de l'économie verte et solidaire
Tour Séquoïa
92055 Paris-La Défense Cedex


4. Notification Number
2021/0644/F - S20E


5. Title
Decree on consumer information on the environmental qualities and characteristics of waste-generating products


6. Products Concerned
Products generating waste, intended for the consumer.


7. Notification Under Another Act
- Directive 94/62/EC on packaging and packaging waste
- Information on compostability (R. 541-221, II), recycled material content (III), re-use (V), recyclability (VI), as well as the prohibition of the words ‘biodegradable’ and ‘environmentally friendly’ (R. 541-224) are applicable to packaging.


8. Main Content
Pursuant to Article 13 of the Law of 10 February 2020 on combating waste and on the circular economy (the AGEC Law), this measure concerns public information on the environmental qualities and characteristics of waste-generating products, as well as the premiums and penalties paid for environmental performance. The present draft decree in the Council of State lays down the conditions for the application of this provision. In this respect, the definitions of the various environmental characteristics and qualities of the products, the sectors and categories of products concerned and the arrangements for making information available are specified in the draft text.
The environmental characteristics and qualities taken into consideration are as follows: reparability and durability, compostability, incorporation of recycled material, use of renewable resources, re-use opportunities, recyclability, presence of precious metals, presence of rare earths, presence of hazardous substances, traceability, presence of plastic microfibres.
The draft text provides that information on the environmental qualities and characteristics applicable to the products concerned shall be made available to the consumer in a dematerialised format, accessible free of charge at the time of the purchase and reusable in such a way as to allow aggregation, at least on a dedicated web page and including an application programming interface. Where appropriate, they may also be communicated in accordance with procedures which may be defined by order, by posting, labelling or any other legible and comprehensible device, at the time of the purchase. These arrangements will also apply for the provision of information on premiums and penalties paid for environmental performance.
Finally, the present draft decree specifies the prohibition of the words ‘environmentally friendly’ and “biodegradable”, as provided for by the AGEC law.


9. Brief Statement of Grounds
The purpose of this provision is to respond to a growing demand from French consumers for more comprehensive and regulated information on the environmental impacts of the products they consume. It is also part of an effort to combat greenwashing, by regulating the terms relating to these environmental qualities and characteristics and by prohibiting some of them. Indeed, it is clear that some of the terms used today by manufacturers or distributors are not precise enough to ensure that consumers understand the environmental impacts of goods and services properly, and can mislead them.
In general, this text aims to better inform the consumer about the conditions for better waste prevention and management through easier access to information on the environmental qualities and characteristics of waste-generating products.


10. Reference Documents - Basic Texts
References to basic text(s): Law No 2020-105 of 10 February 2020 against waste and for the circular economy (Article 13-I)


11. Invocation of the Emergency Procedure
No


12. Grounds for the Emergency
-


13. Confidentiality
No


14. Fiscal measures
No


15. Impact assessment
-


16. TBT and SPS aspects
TBT aspect

Yes

SPS aspect

No - The draft is not a sanitary or phytosanitary measure.

**********
European Commission

Contact point Directive (EU) 2015/1535
Fax: +32 229 98043
email: grow-dir2015-1535-central@ec.europa.eu

Stakeholders Contributions

The TRIS website makes it easy for you or your organization to share your views on any given notification.
Due to the end of standstill we are currently not accepting any further contributions for this notification via the website.


en
  European Vending & Coffee Service Association on 05-01-2022
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Please find attached the European Vending & Coffee Service Association comments on the Draft decree on consumer information on the environmental qualities and characteristics of waste-generating products. 


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  Asociación Nacional de Perfumería y Cosmética (STANPA) on 05-01-2022
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Se adjunta documento de posición de STANPA con comentarios al proyecto de dedecreto sobre información al consumidor sobre las cualidades y caracterísitcas ambientales de los productos generadores de residuos.


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  NAVSA on 04-01-2022
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  CSNIL on 04-01-2022
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  EDRA (European DIY Retail Association) on 04-01-2022
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 Clearly the French decree is raising concerns as it will oblige placers on the market (manufacturers and importers) to:

 

  • Provide in a digital form and free of charge to their consumers a great deal of information on their products, i.e. information on reparability, durability, biodegradability, incorporation of recycled content, use of renewable resources, reuse, recyclability, traceability and presence of precious metals, rare earths, dangerous substances and plastic microfibers. This information must also be provided at the moment of purchase and in a way that they can be aggregated to allow consumers to compare this information;
  • The products concerned are those subject to Extended Producer Responsibility (EPR) which means virtually all products (packaging, furniture, batteries and accumulators, electrical and electronic equipment,…). France has chosen the EPR system for its waste management and has close to 20 different EPR schemes.

 

This text is raising several concerns (EDRA key points) :

 

  1. Considering the complexity of these new obligations, the deadline for application is too short (1/1/2022) and should be extended significantly (18-24 months) to allow companies to comply in time and create legal certainty for them.
  2. Today, the authorities are not in position to control the new requirements since there is not a harmonized method to measure several of them (e.g. incorporation of recycled material)
  3. Some economic operators such as online marketplaces are not subject to the same checks and controls than others like omnichannel DIY retailers. The new information requirements will only worsen this uneven playing field and put us at a greater disadvantage. 
  4. Regarding dangerous substances, the EU has already created a database where information on Substances of Very High Concern (SVHCs) are registered and that consumers have access to. What is the added value of imposing information requirements for dangerous substances yet again?

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  European Paper Packaging Alliance (EPPA) on 04-01-2022
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EPPA, The European Paper Packaging Alliance, is a not for profit alliance for the fibre-based food and food service packaging value chain. It promotes renewable, low carbon and recyclable solutions that ensure food safety and hygiene; that reduce food waste; and that meet consumer and societal needs and would like to comment as follows:

On composting the approach is not harmonised.

On definitions

  • Industrial composting (EN13432) is a European standard and widely recognised by industry and many consumers alike and should not be forbidden to use
  • The term ‘industrial composting’ is a clear and recognisable message and informs the consumer clearly of the environmental impacts of the products they consume
  • EPPA suggests that it should be possible to use the words "only industrially compostable" which will differentiate from ‘Home Compostable’ and will promote communication to consumers for suitable end of life solutions

On messaging

  • Messaging and marking of products should be aligned across Europe in order to support the vital free movement of goods and ensure supply chain costs are minimized
  • In order to provide consumer information labelling such as additional QR codes would be required and may conflict with other information required for consumers, such as safety information marking obligations
  • The increasing proliferation of required information is creating issues relating to the available space on products, costs of production through to confusion of the consumer on multiple messaging on one product.
  • EPPA supports the recent communication on Establishing an EU harmonised system to provide consumers with understandable and clear sorting instructions for packaging waste from over 40 organisations across the Packaging Chain Forum which has been shared with DG GROW and DG ENVI
  • EPPA ask that the Decree must ensure that additional restrictions on free trade are not incurred by ensuring a harmonised approach and suggests support of the harmonised approach

In relation to re-usable and point V:

  • It would be necessary to specify the following essential elements: the number of times for which the packaging is intended to be reused and the modalities and location of the re-use scheme.
  • EPPA therefore suggests that a sentence be added at the end of the paragraph: "V.- Re-use possibilities are understood as the possibilities for a product to be designed, created and placed on the market to be used again for a use identical to that for which it was designed, without acquiring the status of waste, in accordance with the provisions of Article L. 541-1-1. Consumer's information on the possibilities of re-use includes the packaging mentioned in 1 ° [packaging used to market products consumed or used by households, including those consumed outside the home] of Article L.541-10-1. This information is expressed in the form of the words "reusable packaging" or "refillable packaging". It shall specify the number of times for which the packaging is intended to be reused and the modalities and location of the re-use scheme.”

en
  CECAPI on 03-01-2022
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 CECAPI endorse the comments submitted by the Fédération des Industries Électriques, Électroniques et de Communication (FIEEC) on the French notification 2021/644/F on Draft Legislative Decree on consumer information of waste-generating products.

 

Kind regards,

Jordi Prats


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  EPBA - European Portable Battery Association on 02-01-2022
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Please find attached the comments of EPBA (European Portable Battery Association) on the draft Decree on consumer information about the environmental qualities and characteristics of waste-generating products (notified by France 2021/644/F)

 


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  CAPIEL on 22-12-2021
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CAPIEL endorse the comments submitted by the Fédération des Industries Électriques, Électroniques et de Communication (FIEEC) on the French notification 2021/644/F on Draft Legislative Decree on consumer information of waste-generating products.

Kind regards,

Jordi Prats


en
  A.I.S.E. on 21-12-2021
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Dear Ladies and Gentlement,

Please find attached our comments on the French consumer information decree.

With kind regards,

Amelie Weber


en
  ACEA on 21-12-2021
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  APPLiA on 20-12-2021
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Please find attached APPLiA's contribution to the French Decree on consumer information on environmental qualities and characteristics of waste-generating products.


en
  Cosmetics Europe on 20-12-2021
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Please find attached Cosmetics Europe comments on the draft decree on environmental qualities and characteristics of waste-generating products, notified by France (TRIS notification number 2021/644/F).


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  Federation of the European Sporting Goods Industry on 20-12-2021
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FESI welcomes the opportunity to comment on the French TRIS Notification and while our members are committed to helping consumers make better purchasing decisions, we highlight the need to reconsider the proposed text to make in line with EU law and current regulatory developments.

In the same manner as for the development of the TRIMAN Decree and other national initiatives we highly question the necessity to display such information only at the French Level, whereas the European Commission is currently working on proposals such as the Sustainable Product Initiative, the Digital Product Passport, the Empowering Consumers and Substantiating Green Claims Initiative at EU level. We feel that draft decree needs thorough reconsideration, to prevent economic operators from finding themselves, in January 2022, in a situation of not being able to comply with new national obligations due to unrealistic timelines and lack of in sync with the EU developments.

The growing number of national initiatives is of critical concern for our members and the EU consumer who are facing a jungle of contradictory and counterproductive local initiatives based on non-robust methods and rushed timelines with no consideration for the development of European alternatives posing an existential threat to the principles of the internal market and its objectives. Our main concerns are as follows:

Alignment with EU and other members states:

The French Decree from October 2021, titled Consumer Information on the Environmental Qualities and Characteristics of Waste-generating Products, will require substantial development and information collection of various environmental attributes that are not aligned or overlap with the EU  legal framework and its upcoming legislative proposals around the building blocks of the European Green Deal. Information requirements include: the recyclability of the product; presence of Substances of Very High Concern (SVHCs), including EU defined SVHC as well as others France can autonomously define; presence of precious metals and rare earth elements; the percentage of recycled content in the product; the potential for microfiber shedding if the product is >50% synthetic materials; and detailed accounting of the products’ origins and all steps of the production process. None of these requirements are aligned with other Member States nor EU current regulatory developments and their methods such as Sustainable Product initiative, Empowering Consumers, Substantiating Green Claims, the Digital Product Passport, the PEF Method, Conflict Minerals, Revision of the Eco Design Directive, the SCIP Database, the work on the unintentional release of Microplastics and many more. And some of the requirements overlap with the aforementioned EU Environment regulatory framework.

Compliance with EU law and the internal market:

Among others, some of the requirements of this measure infringe:

Article 8a(1)(d) of the Waste Framework Directive (2008/98/EC), which prevents Member States from “placing a disproportionate regulatory burden on producers” and Article 8(3) of the Waste Framework Directive, which provides that when applying Extended Producer Responsibility Schemes, Member States must respect “the need to ensure the proper functioning of the internal market”.

According to established case law, labelling requirements must be regarded as barriers to intra-EU trade in that they directly affect the product and thus trade within the EU.  In the absence of harmonized rules, Article 34 TFEU prohibits “quantitative restrictions on imports and all measures having equivalent effect between Member States”.

Such a national measure also infringes Article 18 of the Packaging and Packaging Waste Directive (94/62/EC), hereinafter PPWD, which provides that, even if Member States are allowed to go beyond the requirements laid down in its provisions, they “shall not impede the placing on the market of their territory of packaging which satisfies the provisions of this Directive”.

Any such restrictive measures can only be justified by one of the public interest grounds set out in Article 36 TFEU or by one of the overriding and mandatory requirements developed by case-law in the EU Court of Justice. Such rules must be necessary in order to attain legitimate objectives and be in conformity with the principle of proportionality, which requires that the least restrictive measure be used.

The proportionality of this French decree can be questioned. The purported objective is to protect the environment, but labels with information on, e.g., rare earth elements and precious metals don’t seem to advance this goal as most don’t present any hazards to the environment[1], nor necessarily does information on where a product was made. Regardless, the measures are not proportionate as protecting the environment can be achieved by less restrictive measures with a lesser impact on intra-Community trade. For instance, instead of mandating such consumer information at national level increasing costs or penalizing non-compliance, communication campaigns and policy guidance at EU level should be emphasized. This would be far less restrictive than forcing companies to change the consumer information processes across multiple Member States. A similar rational has been employed by the European Commission when assessing the proportionality of the French Triman marking requirements, in its above-mentioned detailed opinion, questioning the value-add that “the mandatory information symbol brings compared with other approaches that can lead to increased recycling, such as improved collection systems, simpler sorting and citizen engagement initiatives”. Other elements of the law can already be found in EU-wide regulations such as the Substance of Concern in Products (SCIP) database which already requires disclosure of SVHCs to an online database without adding additional labelling requirements. Duplicating SCIP in a single Member State cannot be proportionate as it requires additional cost without providing additional information. Requiring a label that says “shedding of plastic microfibres into the environment during washing” may drive consumers to think that synthetic textiles are worse for the environment which is debatable when considering land-use or water consumption, and when washing machine filters and wastewater treatment facilities have been found to mitigate this risk – something France has already recognized in Assembly Bill 4336[2]. Finally, if any of these measures would significantly benefit the environment, individual country regulations in localized languages still present barriers to intra-Community trade. The EU’s Sustainable Products Initiative, Sustainable Chemicals Strategy, Product Environmental Footprint, Digital Passport, Waste Batteries Directive revisions, Microplastics policy actions and Waste Directive revisions would be an appropriate place to address these issues while maintaining a uniform and harmonized single market. 

Disparate national consumer information requirements and labels impede the use of a single EU-wide packaging solution and therefore require the redesign of all packaging and development of communication vehicles and methods across the entire internal market for an individual country or the production of separate variants for that market. The sheer quantity of information that France plans to require on labels means that utilization of a sticker to relabel over existing EU-wide labels would not work due to size constraints. At the very least it would have a substantial impact on shipping validations, product packaging and supply-chain optimization. Also, the French requirements are resource intensive - both from a manufacturing and an environmental perspective, potentially doubling the size or number of pages of current labeling which will increase waste generation and carbon emissions.

The ongoing review of the Product Environmental Footprint, PPWD, Sustainable Chemicals Strategy, Sustainable Products Initiative, Digital Passport Initiative, and revisions to the Waste Batteries Directive all present a great opportunity to set common requirements on which relevant environmental information should be provided to consumers and how this should be done for different product categories, including the use of digital solutions that can help provide required information without the need to increase packaging size or repackage. These developments, however, will take time to see the light and produce concrete outcomes. In the meantime, therefore, concrete and urgent action is needed to halt the proliferation of unilateral and divergent national measures and sanction infringements to maintain single-market harmony.

Economic and operational impacts with limited value:

·        Companies will also be forced to engage in extremely costly supply chain due diligence programs to find out if products contain any of the listed precious metals or rare earth elements. Most of these materials are not regulated in any other jurisdiction so downstream suppliers are under no obligation to provide information on their presence to final product manufactures. Moreover, according to ECHA many of the materials listed have no known negative effects on health or the environment[3] so the required effort and cost of disclosure would not benefit the environment and may only confuse consumers about a product’s true environmental impact.

·        Responsible companies already engage in due diligence of their direct and indirect suppliers, however, visibility of fourth tier suppliers that are cultivating or extracting raw materials is limited. Consequently, companies will have to push downstream suppliers to track and disclose this information at great effort and expense while providing environmental information of limited value. Sometimes the environmental impacts of where some commodities are produced can be meaningful, as represented by the newly proposed EU Deforestation draft regulation, but other commodities have limited differences based on where they are grown/extracted. Likewise, differences in the production/processing methods used may have a larger impact on the environment than the specific geography the production/processing is done. Thus, the effort and cost associated with such due diligence won’t provide meaningful environmental impact information to consumers. Moreover, one product may be produced in multiple factories in different countries or use the same component but from more than one supplier. In this instance providing exact downstream information to a consumer could be impossible or require providing a list of potential suppliers/sources that the product uses, in which case the consumer would not get actionable information.

·        Some criteria do not refer to clearly determined and measurement methods, leaving the companies in a high legal uncertainty and not enabling fair comparison between various products and categories. Incorporation of recycled materials, presence of precious metals and presence of rare earths, recyclability criteria need to be accurately defined using harmonized standards at the EU Level.

 

In conclusion FESI highly questions the relevance of such national initiatives and calls on the EU Members States to further take part in the EU’s regular regulatory process through the European Institutions as foreseen during the process for developing upcoming EU legislation addressing their concerns such as Sustainable Product initiative, Empowering Consumers, Substantiating Green Claims, the Digital Product Passport, the PEF Method, Revision of the Eco Design Directive, the SCIP Database, the work on the unintentional release of Microplastics and many more. FESI and its members truly hope that the European Commission and other member states will be able to use all the tools necessary to provide such harmonisation and halt the proliferation of unaligned initiatives.



[1] Precious metals and rare earth elements requiring disclosure that have no identified hazards at all include: gold, palladium, platinum, promethium, and holmium. Cerium, lanthanum, yttrium, scandium, gadolinium, erbium, and lutetium are only identified as flammable solids. Source: https://echa.europa.eu/en/information-on-chemicals/euclef

[3] Precious metals and rare earth elements requiring disclosure that have no identified hazards at all include: gold, palladium, platinum, promethium, and holmium. Cerium, lanthanum, yttrium, scandium, gadolinium, erbium, and lutetium are only identified as flammable solids. Source: https://echa.europa.eu/en/information-on-chemicals/euclef


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  Toy Industries of Europe (TIE) on 17-12-2021
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Please find attached Toy Industries of Europe (TIE) comments on the Draft decree on consumer information on the environmental qualities and characteristics of waste-generating products. 

We remain at your disposal for any further information or clarifications related to the issues raised in this submission.


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  European Bioplastics on 16-12-2021
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  DIGITALEUROPE on 15-12-2021
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DIGITALEUROPE would like to indicate its endorsement of the comments submitted by the Fédération des Industries Électriques, Électroniques et de Communication (FIEEC) on 13th December 2021 on the French notification 2021/644/F on Draft Legislative Decree on consumer information of waste-generating products.

Kind regards,

Hugh Kirk


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  Plastics Europe on 14-12-2021
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Please find attached Plastics Europe contribution on French notification 2021/644/F on Draft Legislative Decree on consumer information of waste-generating products.

 

We remain at your disposal for any further information or clarifications related to the issues raised in this submission.

 

Yours sincerely,

David Carroll


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  FIEEC on 13-12-2021
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Please find attached the comments by FIEEC, french association of electrical and electronics industry.


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  FoodDrinkEurope on 10-12-2021
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  Please find attached the comments by FoodDrinkEurope


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  UNESDA on 08-12-2021
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Dear all,

Please find attached UNESDA-NMWE-AIJN's comments on the French Decree on consumer information on the environmental qualities and characteristics of waste generating products. 

We thank you in advance for taking our comments into consideration and remain available for any question. 

Kind regards,

Nicholas Hodac