EU’s Sustainable Product Initiative goes far and falls short

By Eléonore Maitre-Ekern — 8 April 2022

Image may contain: face, woman

Eléonore Maitre-Ekern, Post doctor, Department of Private Law, University of Oslo.

Finally! On 30 March 2022, the European Commission released its much awaited legislative initiative from the 2020 Circular Economy Action Plan, the Sustainable Product Initiative. The Initiative was announced as the central policy of the new Circular Economy  package and is meant to make ‘products fit for a climate-neutral, resource-efficient and circular economy, reduce waste and ensure that the performance of front-runners in sustainability progressively becomes the norm’. In this fast developing area, a broad legislative framework had been desperately missing. The main legislative Proposal for a Regulation on Ecodesign for Sustainable Products is aimed to fill this gap. The proposal is ambitious and has the potential to bring significant changes to the market. In contrast, the Proposal for a Directive on Consumer Empowerment released the same day is quite underwhelming.

Ecodesign as point of departure

The core of the Initiative is to widen the existing Ecodesign scheme, and the star legislative proposal is the new Ecodesign Regulation proposal. The Regulation is intended to replace the most successful instrument of EU’s Circular Economy policy so far, the 2009 Ecodesign Directive.

The main features of the current Ecodesign scheme will be continued under the proposed new Regulation. The Commission will have under its mandate to adopt eco-design requirements for each specific product group, as it has done for products such as washing machines, vacuum cleaners, light bulbs and computers. However, the scope of the scheme is to be significantly broadened from covering energy-related products only to encompassing any physical goods, apart from food, medicines and living organisms. An exciting development and one  of the stated aims of the proposal will be to regulate the design of clothes and furniture. Textile consumption in Europe has been found to have on average the fourth highest negative life cycle impact on the environment and climate change, after food, housing and mobility.

The existing Ecodesign rules are behind the disappearance of short-lived and inefficient incandescent bulbs from all European shelves and the rise of LED lights. The future Ecodesign requirements could in a similar way revolutionise the fashion industry that has flourished in the last decades on quick turnover of cheap and low-quality clothes. It is too early, however, to know how the rules will look like. Vigilance will be needed against lobbying efforts in Brussels by an industry that most likely is not ready to embrace a radical change of its business model, despite all the sustainability talk.

Product lifetime extension – hope and uncertainty

Another remarkable feature of the Ecodesign Regulation proposal is that the current emphasis on energy efficiency of the Ecodesign Directive is to give way to more essential aspects of product design from a sustainability perspective, in particular ‘durability’, ‘reliability’, ‘reusability’, ‘reparability’ and the ‘possibility of maintenance and refurbishment’. The way out of the throwaway society we live in is to establish a new paradigm in which products are made to last, can be repaired and reused. This new focus is therefore to be welcomed. At the same time, much uncertainty remains around future requirements to be adopted for specific products groups. The durability of a t-shirt might not only depend on the fabric used to make it, but also on its style that may make it prematurely obsolete in the eyes of consumers. Similarly, for electronic products, such as a laptops and mobile phones, the durability will not only depend on its design but also how they are marketed.

The promise of a Digital Product Passport

The Commission is also introducing a digital product passport, which is an important initiative to increase transparency, both for the individual companies in the global value chain and for the general public. The passport shall accompany any product placed on the market. The product information to may be added to the passport is to detailed in the proposal’s Annex III, which lists in priority the product’s durability and reparability, the possibility for upgradability and other recovery activities such as re-use, re-furbishing and remanufacturing, resource consumption and environmental footprint.

The passport carries high potential for increasing due diligence of producers by forcing them to look into the sustainability impacts of their products and report about it. It may also provide essential information to key actors of a sustainable circular economy; the users, re-users and repairers, and empower them to make informed choices and carry out activities that may prolong a product’s lifetime – like repair. 

Consumer empowerment – a missed opportunity

The other highly expected legislative proposal of the Sustainable Policy Initiative was a directive on consumer empowerment. Instead of a whole new instrument, the proposed directive suggests to amend two existing directives: the Unfair Commercial Practices Directive and the Consumer Rights Directive. The Commission’s stated intention with this proposal was to develop requirements about information on durability and reparability, prevent greenwashing and premature obsolescence practices, and tidy up the use of sustainability labels. The outcome does not rise to the challenge.

The lack of ambition of this proposal is even more striking when comparing to the proposed Ecodesign Regulation, and to initiatives already in place in some Member States. A year ago, France implemented a mandatory reparability index (in French only) for five categories of electronic devices. By 2024, it will be replaced by an even more ambitious ‘durability index’. Several Member States were holding off adopting similar schemes as they waited for the Commission’s proposal. They will now need to get to work.

When it comes to consumer information, the proposed Consumer Empowerment Directive merely aims to add a product’s reparability score (‘where applicable’) to a long list of existing information requirements already established in the Consumer Rights Directive. This proposition is underwhelming on several levels.

A reparability (or durability) score should make products that are more expensive but more durable and reparable, competitive with their cheap counterparts. If drowned in too much other information, neither producers nor consumers are likely to make much case of these essential sustainability features. The proposal provides no guidelines to how the score is to be developed, how it is to be displayed to consumers, and when it shall applicable. It will be for the national authorities to figure out when transposing the directive. This may lead to several different national scores being developed in parallel, with obvious problems for businesses to abide by and consumers to rely on.

The other proposed new information requirements are missing both flesh and teeth: information about a commercial guarantee of durability is made dependent on producers’ willingness to provide the information. The same goes for information about the time during which producers provide software updates. Such half-measures are simply not good enough for changing the market the way it needs to be.

Much work ahead!

The stated aspirations of the EU’s Circular Economy Action Plan gave hopes for a powerful sustainable product instrument. The Ecodesign Regulation proposal can be such an instrument yet much uncertainty remains as new ecodesign requirements and a digital product passport are being developed.

And yet, ecodesign, however important, is not a silver bullet. Other initiatives are needed too. This is painstakingly clear when we see how other proposed circular economy policies fail to meet the ambition of the proposed new Ecodesign scheme. Transition to a sustainable circular economy requires keeping products in use longer, which includes repair. That requires, in turn, getting users on board this project. Useful and trustworthy information schemes – like the reparability index adopted in France – are among essential tools to do that. These must be accompanied by effective remedies for users when durability or reparability claims are breached. If users cannot trust the long-term advantages of purchasing durable products and attempting repair, no design will be good enough to make product sustainability a reality.

Tags: Circular Economy, Sustainability
Published Apr. 8, 2022 12:43 PM - Last modified Apr. 8, 2022 12:46 PM
illustrasjon

Blogging for Sustainability

Blogging for Sustainability presents current research and latest activities from our research group, from our various research projects, and showcases major publications. We welcome guest bloggers!

Read our blog for current research and latest activities. If you would like to contribute, please contact our editorial team at companylawblog@jus.uio.no.

Editorial team: Eléonore Maitre-Ekern, Beate Sjåfjell and Jukka Mähönen.