European Union: Provisional Agreement Reached On Groundbreaking New Products Law: EU Ecodesign For Sustainable Products Regulation

Provisional agreement on the text of the new Ecodesign for Sustainable Products Regulation was reached by the European Union institutions on 4 December 2023. The ESPR will introduce a new, broad ecodesign framework that will empower the European Commission to adopt far-reaching sustainability requirements for product groups. It also will create new transparency requirements for products in the form of an EU 'digital product passport' and will ban the destruction of unsold clothing and footwear.

Provisional agreement on the text of the new Ecodesign for Sustainable Products Regulation was reached by the European Union institutions on 4 December 2023. The ESPR will introduce a new, broad ecodesign framework that will empower the European Commission to adopt far-reaching sustainability requirements for product groups. It also will create new transparency requirements for products in the form of an EU 'digital product passport' and will ban the destruction of unsold clothing and footwear.

Background

The Ecodesign for Sustainable Products Regulation (ESPR) was originally proposed by the European Commission in March 2022 to repeal and replace the existing Ecodesign Directive. The EU institutions reached a provisional agreement on the new law on 4 December 2023. We anticipate that this new law will have a significant impact on many of our clients' businesses. We have summarized the key highlights below.

Key highlights

Broader scope and stricter sustainability requirements

The ESPR will give a broad mandate for the Commission to introduce product-specific sustainability requirements for a wide variety of products via delegated acts. It significantly expands both the scope of products covered and the requirements which could apply to said products.

Scope: The ESPR will apply to all products on the EU market, including intermediate products, such as steel and aluminium, with only a few sectors exempt – including food, feed, living organisms, certain motor vehicles and medical products.

Requirements: The ESPR will empower the Commission to adopt a broad spectrum of sustainability requirements for specific product groups. These requirements generally fall into two buckets:

• Performance requirements: These are very broad and cover elements like durability, reliability, reusability, repairability, energy and resource efficiency, recycled content, and the presence of 'substances of concern' – a new concept that includes substances that can negatively affect the reuse and recycling of materials in the product.
• Information requirements: These include the introduction of a 'digital product passport' (see below) and the publication or labelling of certain other sustainability information.

Once the Commission adopts requirements for a specific product group, products within that group will only be able to be placed on the EU market if they comply with the requirements.

Priority product groups

Although the scope of the ESPR is very broad, the Commission has already stated that it intends to prioritise the introduction of requirements for certain product groups which it deems highly impactful. These include textiles, iron, steel, aluminium, furniture, tires, paints and chemicals, as well as certain energy-related products and electronics.

Digital product passports

As part of the EU's drive towards greater transparency on sustainability issues, the ESPR also introduces a 'digital product passport' which will require the provision of information on the sustainability credentials of products via QR code to consumers, regulators and other businesses in the supply chain. The idea is that increased transparency will drive consumers towards making more sustainable choices, and that it also will provide market intelligence for refining the rules in the future.

Unsold consumer goods

The ESPR introduces various requirements aimed at minimising the number of unsold consumer goods, which will apply without the need for further delegated acts.

In particular, the ESPR introduces a first-of-its-kind ban on the destruction of unsold clothing and footwear. This will apply two years after the legislation enters into force, with various exemptions for small or medium-sized companies. The Commission also has been given the power to prohibit the destruction of other categories of products in the future (e.g., unsold small electronics).

The ESPR also introduces a requirement for certain large companies to publish the quantities of unsold consumer products they discard each year, alongside their reasons for doing so.

Next steps

The provisional agreement will now need to be formally approved by the European Parliament and Council. Although it is possible there could be changes along the way, these tend to be legal linguistic amendments, rather than substantial amendments to the text. The legislation will then be signed, published in the Official Journal of the European Union and enter into force 20 days later to complete the lawmaking process.

Following the ESPR's adoption, the Commission is expected to adopt its first working plan within nine months of entry into force of the ESPR, which will include an indicative list of product groups that it intends to regulate in the coming years. Product-specific requirements will apply via delegated acts which will be adopted separately by the Commission and will each have their own transition period.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.