Packaging supply chain concerns on the French “Projet de loi relatif à la lutte contre le gaspillage et à l’économie circulaire”
Brussels, 25 September 2019
Herein, the 11 undersigned organisations wish to share their concerns with the European Commission and Member States on the French Projet de loi relatif à la lutte contre le gaspillage et à l’économie circulaire (Draft law on the fight against waste and the circular economy, herewith ‘the draft law’). We welcome France’s ambition and efforts to implement the revised Waste Framework Directive 2018/851 (herewith ‘the WFD’) and Packaging and Packaging Waste Directive 2018/852 (herewith ‘the PPWD’) and recently adopted Single Use Plastics Directive 2019/904 (herewith ‘the SUP’). However, we consider some provisions of the Draft law to be damaging for the functioning of the EU’s Internal Market as they create new trade barriers and are disproportionate with regard to the stated policy objectives.
These measures include:
- The mandatory use of a sorting logo (‘signalétique sur les règles de tri’) for all products subject to EPR including all packaged goods (Article 3). This means introducing a separate labelling requirement for products placed on the market in France that has no direct equivalence in other EU Member States. In addition to fragmentation, there is also a risk of over-saturation of information on pack (from Articles 1 & 3) and subsequent consumer confusion (i.e., multiplication of messages on recycled material use and content, recyclability, Triman etc.). The imposition of the labelling requirement does not appear to be justified by any evidence presented (vis-à-vis improvements to consumer sorting and recycling outcomes). Moreover, the entry into force of the Triman logo obligation is set by the draft law for 1st January 2021, hence before the obligation of sorting all packaging waste at source and the national harmonisation of colour codes for separate collection bins (both scheduled for 2022). Together, these two measures are expected to improve consumers waste sorting practices such that the effectiveness of the Triman symbol on packaging can be questioned;
- A requirement to label information relating to the numerous environmental criteria, including recycled content, use of renewable resources, durability, reparability, reusability and recyclability (Article 1) which goes beyond the prescribed measures in Article 7 of the SUP on ‘Marking requirements’. There is no EU requirement vis-à-vis labelling of either of these characteristics. Packaged goods destined for France would therefore need additional labelling and this would become to represent a barrier to the Internal Market. This might be remedied by opportunities for ‘de-materialisation’ of information (i.e., off-pack) or making such labelling voluntary;
- The ability to impose national recycled content levels for certain products and materials including packaging (Article 7). This would allow France to introduce national requirements on recycled content for packaging materials in addition to the current EU requirements for single-use beverage bottles under the SUP. This potentially runs contrary to Article 18 of the PPWD on ‘Freedom to place on the Market’. Moreover, there is no acknowledgement of regulatory restriction on recyclate in packaging destined for food (cf. EFSA opinions) or other sensitive sectors likewise employing food-grade or medical packaging materials;
- National requirement that unsold non-food products must be recycled or donated without any precision on whether any such products can be ‘exported’ outside France to other EU member states (Article 5). This would represent a barrier to the Single Market for packaged goods and potentially other goods;
- The ability to impose (eco-modulation) penalties (Article 8) in respect of waste generated by certain products, without regard to the actual costs of waste management. This provision risks leading to greater costs than the actual operational ones. This implies extra costs inconsistent with the Extended Producer Responsibility (EPR) costs described within Article 8a(4)(c) of the revised WFD. Moreover, a limit of 20% of the value of the products, as proposed by the draft law, would be disproportional relative to the value of the packaging as well as being inflationary for consumers. Linking eco-modulation to a sales price that is not fixed by the producer is also likely to raise other practical issues (e.g., discrimination between brands not based on environmental considerations). We further regret that the impact of the measure was not assessed as part of the impact assessment. The draft law also requires EPR fees to be modulated, where possible, according to recycled content, which goes beyond Article 8a(4)(b) of the WFD and disregards current legal barriers to the uptake of recycled content (e.g., EFSA opinions) which make it non applicable to certain packaging materials. Unilateral national initiatives in this respect therefore run counter to the call for EPR fee modulation to be “based on harmonised criteria in order to ensure a smooth functioning of the internal market” within Article 8a(4)(b).
Considering the above, the undersigned organisations recommend:
(1) The EU authorities to review the compatibility of the proposed legislation with EU product legislation and internal market rules;
(2) The French Government to adapt the relevant elements accordingly and notify the draft law to the European Commission;
(3) In the event that France adopts the current draft law, we ask the Commission to launch an infringement procedure against France in respect of the internal market provisions within the PPWD.
We thank you in advance for taking our views into consideration and would be happy to expand upon our views on this matter in the meantime.
The undersigned 11 organisations are as follows:
- AGVU – Arbeitsgemeinschaft Verpackung + Umwelt e.V.
- AIM – European Brands Association
- European Vending and Coffee Service Association
- EUROPEN – The European Organization for Packaging and the Environment
- EXPRA – Extended Producer Responsibility Alliance
- Flexible Packaging Europe
- IK- Industrievereinigung Kunstsoffverpackungen e.V.
- NAVSA – Chambre syndicale NAtionale de Vente et Services Automatiques
- PlasticsEurope – Association of Plastics Manufacturers
- UNESDA – Soft Drinks Europe
 Projet de loi relatif à la lutte contre le gaspillage et à l’économie circulaire (TREP1902395l) https://www.legifrance.gouv.fr/affichLoiPreparation.do;jsessionid=2C9DC86A36539F9047DB7DCFB5254565.tplgfr21s_1?idDocument=JORFDOLE000038746653&type=contenu&id=2&typeLoi=proj&legislature=15
 Since the 1990s, the European Single Market (also know as Internal Market) has grown into the world’s largest integrated market. The Single Market is the basis of the economic success of Europe and has become a key pre-requisite of all other EU policies. Despite this success, the Single Market can be threatened by individual Member State initiatives that can lead to market fragmentation that effectively restricts access. A well-functioning Single Market is essential for competitiveness, innovation and sustainability and Europe’s position as a global economic leader. The integrity of the Single Market therefore needs to be defended from erosion by national initiatives.
 Article 8a(4)(c) EU/2018/851: “do not exceed the costs that are necessary to provide waste management services in a cost-efficient way. Such costs shall be established in a transparent way between the actors concerned.”