Introduction

In March 2022, the European Commission presented a package of European Green Deal proposals to “make sustainable products the norm in the EU, boost circular business models, and empower consumers for the green transition”. At the heart of this package, as the Commission puts it, is the proposal for Ecodesign for Sustainable Products Regulation (ESPR) aiming to improve the sustainability of products, on which the European Parliament and the Council of the EU reached a provisional agreement in December 2023. Recently, on 23 April 2024, the agreement was approved by the plenary of the Parliament and is now submitted to the Council for final endorsement, which is expected this month.

Building on the Ecodesign Directive, which only covers energy-related products, the new Regulation expands the scope of the ecodesign framework to cover “the broadest possible range of products”. It introduces more extensive ecodesign requirements that relate to, inter alia, product durability, reusability, upgradability, and repairability. Furthermore, the ESPR seeks to establish minimum criteria relating not merely to energy efficiency but also to circularity and the overall reduction of the environmental and climatic footprint of products. In this blog post, Anna D'Agostino, a PhD candidate from the Consumer ID project team, shares her opinions and answers some of our questions about the ESPR.

Interview

Could you elaborate on how the ESPR expands the scope of products compared to the previous Ecodesign Directive?

Anna D'Agostino: The previous Ecodesign Directive applied only to energy-related products on the EU market and aimed to improve the energy and resource efficiency of selected product categories. The new Regulation establishes a comprehensive ecodesign framework applicable to all physical goods placed on the EU market, with a few exceptions (e.g. food, medicinal products). Importantly, the ESPR identifies high-impact products, such as ICT products and textiles, which will be prioritised in the timeline for the setting of requirements. The Commission will have a significant role to play, as it will adopt sustainability requirements for the different product categories in delegated acts.

What specific sustainability requirements does the ESPR establish?

Anna D'Agostino: The ESPR considers a spectrum of sustainability requirements, ranging from durability, reliability, reusability, upgradability, and repairability requirements to other aspects, such as maintenance, refurbishment, remanufacturing, recycling possibilities, and expected waste generation. Civil society advocacy has led to the improvement of several parameters, such as the impact of substances on health and the environment and the release of micro and nanoplastics. In addition to performance requirements, there are also information requirements to increase the transparency of product design. These requirements should encourage manufacturers to improve the circularity and lifespan of their products, ultimately making the European market more environmentally sustainable and toxic-free.

Could the Regulation have done more?

Anna D'Agostino: Of course, the new Regulation is not free from doubts and criticisms. Firstly, social sustainability considerations (e.g. fair trade, fair recycling) are not reflected in these sustainability requirements, which focus primarily on environmental sustainabily aspects. Some stakeholders, such as BEUC, suggest that the Batteries Regulation should be an inspiration for future legislation, as it requires manufacturers to establish due diligence policies for their supply chain. 

Another doubt is how these requirements will be defined in practice and by whom. The ESPR (Art. 5(11)) provides for some criteria to be followed in setting requirements: “there shall be no significant impact on consumers in terms of the affordability of relevant products (…), there shall be no disproportionate negative impact on the competitiveness of economic operators and other actors in the value chain, (…)”. It will be interesting to see whether impacts on costs and other measurable indicators will be used to justify a reduction in ambition.

Another limitation is that these requirements will not automatically reduce the overall volume of products manufactured or the material footprint of the industry. However, it is hoped that the ESPR will represent an opportunity for manufacturers to rethink production volumes. In this respect, the ban on destruction of unsold products introduced by the ESPR (although for now limited to some product categories, i.e. consumer apparel and footwear) is an important signal for companies in this direction, for which the destruction of products is, unfortunately, still too attractive.

One instrument that the ESPR introduces is the digital product passport, a tag on products that consumers can scan to access information about products’ environmental sustainability. To what extent do you think such a passport will help consumers make informed choices?

Anna D'Agostino: I find the digital product passport an innovative contribution of the Regulation, but I think its function is rather to make producers comply with the said ecodesign requirements and to facilitate market surveillance. This tool can improve access to information for various actors across the lifecycle, including repairers, recyclers, and waste handlers. But it could also help manufacturers improve their procurement strategies to design better products by increasing transparency and traceability, gaining visibility of the complex value chain, identifying suppliers and actors down to raw material suppliers, and proactively engaging with them to prevent and mitigate environmental and social risks. 

Turning to your question, I do not know to what extent consumers will use the digital product passport when making purchasing decisions. However, it could prove very useful in the use phase, for instance, when trying to access repair instructions or spare parts.

Given the increasing number of EU rules already requiring disclosure of information on sustainability, is there a risk that the information requirements stipulated under the ESPR could lead to information overload for consumers, leading to confusion rather than informed decisions?

Anna D'Agostino: The risk of information overload is always around the corner, and many studies have by now shown this phenomenon, which we can all relate to. The questions are: what is the function of information at all, and what is that of informing about sustainability aspects? Do they aim to achieve a similar goal? In the ESPR, the main information duty is the digital product passport, which we discussed earlier. But there are also other old and new provisions, such as the Consumer Rights Directive, recently amended by the Directive on empowering consumers for the green transition (ECGTD), which now requires, among other things, information at the point of sale on the availability of software updates. The Directive on common rules promoting the repair of goods also creates new information rights for consumers on the repair. If all this information will prove to be ineffective and counterproductive, I do not have a personal conclusion. Empirical studies on how the information requirements of the ESPR and these new legislations affect consumer behaviour may shed more light on what really happens.

Apple is reportedly starting to pay $500 million over claims for deliberately slowing down certain iPhones. There are also allegations that Apple products have been difficult to repair since 2017 due to the software that allows Apple to control the products even after they have been sold. To what extent do you think the ESPR will be able to prevent such alleged practices in the future?

Anna D'Agostino: Hopefully, requirements on product durability, upgradeability, and repairability will prevent practices that make repair difficult and discourage manufacturers from designing their products in such a way as to render them prematurely obsolete. In this last regard, the effectiveness of the Regulation in countering such practices may be enhanced by synergy with other legal developments, such as the ECGT Directive, which amends the list of prohibited practices in Annex I of the Unfair Commercial Practices Directive by adding several practices related to premature obsolescence.

Although consumers say that the durability of the product they buy plays an important role in their decision-making, do you think this aligns with actual consumer habits? Do consumers use the product they buy as much as they can?

Anna D'Agostino: As it is posed, this question resonates with one of my research questions: if sustainable products become the norm, will sustainable practices, such as reuse and repair, also become the norm? If products that break easily and become obsolete prematurely have certainly contributed to our fast consumption pace, products designed to last longer could help us slow down and reduce our consumption patterns. I think it is early to know, and it is always tempting to think that legal innovation can accelerate social change, in this case towards, sustainability. However, there is potential for improvement in our current practices, and I see reasons to be hopeful.

I often hear that ‘sustainable laws’ tend to motivate consumers who are already concerned about sustainability but not others. We could be more hopeful than that, as the law can help change our institutions, market, and social structures. This is my personal drive to do this research. I think it is possible that laws, such as the ESPR, can have an impact on our relationship with products, on what we consider acceptable consumption pattern, and on some narratives we have internalised. Some practices, such as reuse and exchange, are already widespread, say, in families and in communities. With products that are designed to last longer, these practices could become more possible, familiar, and thus normalised. 

Ideally, product design may not only allow us to rethink our relationship with products towards greater care and maintenance but also enable more social interactions. If we recognise more value in what we have, we may be more inclined not only to reuse it, but also to donate it or exchange it with someone who might need it, instead of cramming it or throwing it away. This could help us achieve greater ecological sustainability, but also create more social glue in our ‘social networks’. Perhaps these networks would be strengthened or new ones would be created in which these sustainable practices are the new norm.