Changes to production and consumption models in order to limit and better manage waste are some of the new obligations brought by Law no. 2020-105 of February 10, 2020 on the fight against waste and the circular economy, better known as the “AGEC law”.

The French legislator’s growing desire to inform consumers about how the products they use and the waste they generate impact the environment is also illustrated in the reinforcement of obligations of professionals regarding how they communicate the environmental qualities of their products and services to the public (Dentons - Communication on the environmental qualities of products: do’s and don’ts).

What sectors currently fall under “extended producer responsibility” in France?

Producers (defined as professionals who manufacture, handle, process, sell or import waste-generating products or the elements and materials used in their manufacture) are declared responsible for waste management, including end-of-life disposal.

France has defined the following sectors that must be concerned with the principle of “extended producer responsibility” (EPR):

• Household packaging
• Paper prints
• Electrical and electronic equipment (WEEE)
• Furnishing elements as well as upholstered seating or sleeping products and textile decoration elements (DEA)
• Textile, footwear and household linen products (TLC)
• Batteries and accumulators
• The contents and containers of chemical products that may present a significant risk to health and the environment and whose waste from these products is classified as household waste and, since January 1, 2021, all waste from these products has been cleared for collection by public waste management services
• Tires
• Passenger cars, vans, two- or three-wheeled motor vehicles and motor quadricycles in order to ensure their recovery throughout the national territory
• Recreational or sport vessels
• Perforating medical devices used by self-treatment patients and users of self-tests for transmissible infectious diseases
• Medicines for human use
• Construction products or materials from the building sector
• Toys
• Sports and leisure articles
• Do-it-yourself (DIY) and garden implements
• Mineral or synthetic, lubricating or industrial oils
• Tobacco products with filters made in whole or in part of plastic and products that are intended to be used with tobacco products

In addition to these, the AGEC law stipulates that the new areas requiring EPR channels are chewing gum, single-use sanitary textiles, professional packaging and fishing gear containing plastic. These EPR channels will be set up between 2024 and 2025.

Eco-organizations and TRIMAN

To help producers of the abovementioned products, specialized government-sanctioned eco-organizations have been created to assist them in managing this waste. By joining such eco-organizations, the producers agree to pay a contribution—the amount varies according to their activity and the criteria as defined by each eco-organization (bonus–malus system)—and in this way the eco-organization takes charge of the waste management.

All products placed on the market intended for households and subject to EPR (excluding household glass beverage containers) must also be accompanied by a sorting label, consisting of a TRIMAN logo and sorting rules. This means that the same product can have several sorting labels if it is subject to several EPR channels. This would be the case, for example, for a box (household packaging channel) containing a toy (toys channel), a garment (textile products, shoes and household linen channel) and a wrapping (household packaging channel).

The rules relating to the composition and affixing of sorting labels (dimensions, colors, symbols, mandatory and optional information, affixing methods, effective date, etc.) vary according to the channel. In these circumstances, it is necessary to ensure compliance with the precise rules applicable to each category of products.

It should be noted that while producers must comply with their new obligations according to a set schedule, which varies according to the channel, they may be granted additional time to allow them to clear their stocks. For example, in the household packaging sector many producers have their packaging manufactured by a third-party company in advance; thus, it was impossible to modify it to display a sorting label before September 9, 2022, the date on which this obligation came into force. Under these circumstances, it was accepted to permit the use of packaging with no sorting label provided that it was manufactured before September 9, 2022, and that the party packing the products has taken possession of the unmarked packaging before March 9, 2023, whether or not the order has been filled by the third-party manufacturer.

We remind that the transition periods for several channels are about to expire, and for producers of those categories of goods, it is essential to ensure that the mandatory sorting labels are in place. Please be aware that resellers are entitled to refuse goods that do not comply with the current law.

Are French regulations too restrictive?

France is one of the only countries in the European Union to have adopted such extensive legislation on waste management, both in terms of the number of EPR channels created and the obligation to display sorting labels, which are very complicated to put in place for producers selling products in several EU countries and whose products circulate within the EU.

French law does allow, by virtue of the principle of mutual recognition, that producers may replace the sorting label provided for in French law with another label regulated by the European Union or another member state (Article R.541-12-20 of the French Environmental Code). However, this is only possible if such other sorting label informs the consumer of the sorting rules and is compulsory.

In this respect, on February 15, 2023, the European Commission opened an infringement procedure against France on the grounds that its law on sorting labels undermines the principle of free movement of goods. According to the European Commission, it creates additional and excessive constraints for producers wishing to sell their products in France. France has two months to respond to the European Commission.

Towards harmonized rules in the European Union

This formal notice from the Commission against French legislation comes as the European Commission published, on November 30, 2022, a draft Regulation on packaging and packaging waste. This draft is intended to amend (i) Regulation (EU) 2019/1020 on market surveillance and compliance of products and (ii) Directive (EU) 2019/904 on the reduction of the impact of certain plastic products on the environment, but also to repeal (iii) Directive 94/62/EC on packaging and packaging waste.

Final adoption of the Regulation, which is scheduled for spring 2024, will establish a common framework in this area for all countries of the European Union. Being particularly advanced on the subject, France could be a source of inspiration for the drafting of the final Regulation—unless the country is forced to revise its requirements downwards in order not to hamper the free movement of goods within the European Union.