Series: Waste or wasted?

European Ecodesign Regulation: regulation for textile and shoe products

18 Sep 2024

Interview with Dr. Anno Oexle

The new Ecodesign Regulation (EU 2024/1781) came into force on 18 July 2024 and is a central component of the European Green Deal. The directive, also known as the Ecodesign for Sustainable Products Regulation (ESPR), replaces the former Ecodesign Directive. As a result, not only can products which use energy such as washing machines and fridges be regulated, but also many other products such as textiles and shoes. This significantly extends the potential scope of future product regulation.

About the series

Dr. Anno Oexle

Dr Anno Oexle, who has specialised in environmental and public product law for over 20 years, explains in this interview what specific changes the textile industry can expect and how companies can prepare for them.

The ESPR will make it possible to ban the destruction of usable products, especially textiles and shoes, and is expected to apply from 2026. What impact do you think this will have on the trade in and consumption of these products?

The ESPR prohibits, as from 19 July 2026, the destruction of unsold consumer products that are listed in Appendix VII of the Regulation (Art. 25 Para. 1, ESPR). Within the terms of the current draft of Appendix VII, these are specific types of clothing, accessories and shoes. “Destruction” in terms of the ESPR is defined as the deliberate damage to or disposal of a product as waste, unless it is done with the intention of recycling or repairing it. “Unsold consumer products” are products that have not been bought, such as surplus goods or returned items. The ban will not apply to medium sized businesses until 19 July 2030, whilst the smaller and smallest companies will be exempt.

The EU Commission is empowered, through what are called ‘delegated acts’, to extend the list of products which are subject to the ban, as well as to designate exceptions. The latter can only be for reasons specifically provided for in the ESPR; these include, for example, matters of health, hygiene and security, unsalability because of an infringement of intellectual property rights (including counterfeit products), damage discovered subsequent to the return of a product and which cannot be cost-effectively repaired, or instances where destruction of the product is the option with the least negative environmental impact. The EU Commission must adopt the delegated act on the regulation of exceptions by 19 July 2025 at the latest.

Clothes and shoes on a white floor — The ESPR initially only forms the legal framework for regulations by the EU Commission. The specific ecodesign requirements have yet to be defined. As a rule, they should apply to a specific product group (e.g. leather shoes).

The impact of this ban on trade and consumption is difficult to predict at the present time and also depends on the individual product and the brand strategy and brand positioning behind it. For brands aiming at broader consumer groups, there is the obvious option of offering surplus goods at discounted prices. For particularly high-priced brand items, the need to protect the brand would seem to rule this out. One option here is, for instance, to hold the goods in storage and issue them again later. In both cases, the ban is likely to lead to lower levels of production overall, which would be consistent with the aim of conserving resources but would certainly also impact prices.

The ESPR also lays down an obligation to create digital product passports. How are we to understand this and what consequences is this likely to have in practice?

The digital product passport is a key innovation of the ESPR and will be a requirement where products are to be sold and used. It amounts to a data record which includes product specific information and will be available in electronic form (e.g. via a barcode). The aim is to register product information electronically and hence make it widely accessible to companies, authorities and consumers.

For this, the delegated acts mentioned earlier must specify which information the product passport must contain, who should have access to it and to what extent. This means that the EU Commission has considerable flexibility in terms of what they include. The access rights of authorities and consumers could, for example, be structured differently and to different extents.

In addition to the product passport, there will be a register of product passports, set up and maintained by the EU Commission. Access to this register will be available for the EU Commission itself, relevant national authorities and customs officials.

So, the ESPR simply creates a legal framework for the passport’s infrastructure. The specific details will need to be fleshed out by the EU Commission through the powers invested in them by the delegated acts. That leaves many questions initially unanswered – in particular with regard to the technicalities of the design, the data media to be used and the content to be included.

However, it is already clear at this juncture, that the digital product passport will provide access to extensive information on products for many potentially interested stakeholders. From a company’s point of view, this may well lead to increased risk of liability in areas such as warranty claims under consumer protection law, green claims and greenwashing. In addition, there is the danger that sensitive company information might become public.

A brown suit as an exhibit — The digital product passport is one of the key innovations of the ESPR. However, what information the product passport must contain and who should have access to this information and to what extent has yet to be finalised.

The regulation talks of something called “horizontal ecodesign requirements”, which will cover several product groups. Would you please explain that briefly?

The ESPR is, with few exceptions, about a regulatory framework. So, it doesn’t itself contain ecodesign requirements for specific products, but simply provides the legal framework for the creation of such regulations by the EU Commission. The ecodesign requirements that are to be set out by the EU Commission, in virtue of the delegated acts, should in general apply to a specific product group (e.g. leather shoes). Where two or more product groups exhibit one or more similarities, making it more efficient to specify similar requirements in terms of information or performance for particular aspects of the products, then the same ecodesign requirements can be laid down for all such products (e.g. leather goods). The ESPR calls requirements which cover several product groups in this way “horizontal ecodesign requirements”

What would you advise companies to do if they want to start preparing for the new regulations now?

Of course, it makes sense, in the initial stages, to get to grips with the ESPR right away and to gain an understanding of the regulatory mechanisms involved. Companies should consider carefully whether and/or how the regulations might impact their particular company’s business model and products. Key to the practical implementation will be the way in which the ESPR is fleshed out by the EU Commission within the terms of the legal framework – a task which, as we have already seen, falls to them by virtue of the delegated acts. This includes, for example, things like the scope of the destruction bans and their exceptions, the design of the product passport, as well as, crucially, the way in which the ecodesign requirements for individual product groups are to be regulated. Affected companies should – either themselves or through their professional associations – monitor carefully the progress of the legislative process and, if possible, contribute their own suggestions.

[1]Source: https://germany.representation.ec.europa.eu/news/okodesign-verordnung-neue-regeln-fur-nachhaltige-produkte-kraft-2024-07-19_de

Serie: Waste or wasted?

About the series

The textile industry has a waste problem. Fashion and home textiles have become mass-produced goods in recent decades and are therefore disposed of with corresponding frequency. While too many textiles become waste even before they are sold, many consumers do not know how to dispose of used textiles in the most environmentally friendly way possible.

What happens to textiles after they have been disposed of? And how can textile waste management be integrated into a circular economy?

In our "Waste or wasted?" series, we present the current situation regarding the handling of textile waste and present solutions for counteracting this detrimental trend.