The European Green Deal in action: significant new circular economy measures proposed

On 30 March 2022, the European Commission (“EC”) presented a package of measures intended to make sustainable products the norm in the EU, facilitate circular business models and empower consumers to make greener decisions.

The measures adopted are as follows:

• Sustainable Products Initiative, including a proposal for the Ecodesign Sustainable Products Regulations;
• EU strategy for sustainable and circular textiles;
• a proposal for a revised Construction Products Regulation; and
• a proposal for empowering consumers in the green transition.

Prior to adoption last week, these four measures had first been announced as part of the EC’s Circular Economy Action Plan (“CEAP”) in March 2020. The CEAP is one of the constituent building blocks of the European Green Deal, the EU’s agenda for sustainable growth, and will continue to be built upon in the coming months and years.

The Package

1. Sustainable Products Initiative & proposal for an Ecodesign for Sustainable Products Regulation

The EC intends to make sustainable products the norm in the EU and to address the “take-make-replace” economic model that currently prevails. It aims by 2030 to ensure that the majority of products on the EU market are designed to be durable and energy- and resource-efficient, reparable, recyclable, and where possible made of recycled materials.

The proposed Ecodesign for Sustainable Products Regulation (“ESPR”) is the cornerstone of the Sustainable Products Initiative. It replaces the Ecodesign Directive, which currently only covers energy-related products, by significantly widening its scope and establishing a framework to set ecodesign requirements for most productgroups. It will enable the setting of performance and information requirements for almost all categories of physical goods placed on the EU market (with some notable exceptions, such as food and feed). The new requirements aim to make products more durable, reliable, reusable, upgradable, reparable, easier to maintain, refurbish and recycle, and energy and resource efficient.

Among other things, the ESPR will introduce the new Digital Product Passport (“DPP”), which will display information about a product’s environmental and sustainability credentials. This is intended to inform consumers and businesses and will facilitate repairs and recycling, The DPP will help regulators to monitor products and to track substances of concern along the supply chain.

The proposal also contains measures to end the destruction of unsold consumer goods, as well as expand green public procurement and provide incentives for sustainable products.

2. EU strategy for sustainable and circular textiles

The strategy aims to create a coherent framework for the transition of the textiles sector and to create a greener, more competitive sector that is more resistant to global shocks.

By 2030, the EC will ensure that:

• all textile products placed on the EU market are durable, repairable and recyclable, to a great extent made of recycled fibres, free of hazardous substances, produced in respect of social rights and the environment;
• ”fast fashion is out of fashion” and consumers benefit longer from high quality affordable textiles;
• profitable re-use and repair services widely available; and
• the textiles sector is competitive, resilient and innovative with producers taking responsibility for their products along the value chain with sufficient capacities for recycling and minimal incineration and landfilling.

The EC will introduce a DPP for textiles and consider making changes to the Textiles Labelling Regulation. It will also introduce textile-specific ecodesign requirements for textiles under the ESPR, setting mandatory minimums for the inclusion of recycled fibres in textiles to make them longer-lasting, and easier to repair and recycle. The strategy also seeks to tackle the unintentional release of microplastics from synthetic textiles through binding design requirements.

The EC intends to propose harmonised rules on extended producer responsibility for textiles and economic incentives to make products more sustainable when making amendments to the Waste Framework Directive in 2023. The textile sector will also be obliged to disclose the number of destroyed and discarded textiles.

The EC will work to deal with the growing concerns over “greenwashing” in relation to recycled plastic polymers and seek to reduce “fast fashion”.

Finally, the EC has proposed co-creation of a Transition Pathway for the Textiles Ecosystem, a collaborative tool for the transformation of the textile industry. Under that Transition Pathway process, the EC intends to engage with stakeholders in the second quarter of 2022. At the end of 2022, the process should result in an agreed vision for the ecosystem and specific pledges.

3. Proposals for a revised Construction Products Regulation

The proposal aims to tackle various issues with and modernise the rules in place since 2011. The EC recognises the need to create a harmonised framework to assess and communicate the environmental and climate performance of construction products. New product requirements will ensure that the design and manufacture of construction products is based on state of the art to make these more durable, repairable, recyclable, easier to re-manufacture.

Manufacturers will have to provide environmental information about the lifecycle of products, comply with design, manufacturing, packaging and repair obligations and give priority to recyclable and recycled materials. They will also need to prove that the product meets EU requirements by drawing up a declaration of performance and conformity to be affixed to the CE marking,

Finally, the revised Regulation will offer digital solutions – potentially including a construction products database and a DPP - to reduce administrative burdens.

4. Proposals for empowering consumers in the green transition

The EC’s proposal is intended to ensure that consumers are armed with the requisite information on a product in order to make an informed decision when purchasing.

The proposed Directive makes amendments to two existing consumer law Directives: the Consumer Rights Directive and the Unfair Commercial Practices Directive.

New requirements on sellers include the provision of relevant information on repairs, such as a reliability score (for certain goods), and information on the availability of spare parts or a repair manual. There are also information requirements for specific products categories: producers of smart devices, digital content and services, for example, must inform consumer about the need for and the nature of software updates.

This information must be provided in an appropriate form, whether this be on the packaging or in the product description on the website.

The proposal will also widen the scope of prohibition on misleading consumers by applying it to wider range of product characteristics. What is to be considered misleading is to be determined generally by a case-by-case assessment but, by way of example, making vague or generic environmental claims (e.g. “environmental friendly”, “eco” or “green”) on a product without clear and verifiable evidence will be impermissible. Certain actions will by definition be considered to be misleading.

Further measures

The new package will be a springboard for further measures in the push for a more sustainable future. Examples of other initiatives include:

• a new proposal for a Revision of the Industrial Emissions Directive;
• a legislative proposal for substantiating green claims;
• a review of the rules on packaging and reducing packaging waste which is currently sitting with the Commission, with feedback planned for the first quarter of this year;
• a new policy framework on bio-based, biodegradable and compostable plastics and measures to reduce the impact of microplastic pollution of the environment, which is currently subject to a public consultation which is due to close on 17 May 2022 with feedback from the EC expected in the fourth quarter of this year.

Comment

The four measures adopted at the end of March are now subject to consultation. It is important that the details are consideredin practical terms as there are significant changes ahead that affect everyone in the supply chain. At the heart of all of these changes is the EU’s Climate Law and the intended transformation of the EU economy. Other jurisdictions will be taking note given the global challenge of greenhouse gas emission reduction and the need to leverage circular economy efforts.

Article co-authored by Adrienne Fisher, Trainee Solicitor at CMS.