ESPR Myths and Truths
- The new Ecodesign for Sustainable Products Regulation (ESPR) aims to make sustainable products the norm in the EU and boost Europe’s resource independence. It is rooted primarily in the European Commission’s Circular Economy Action Plan of March 2020, which in turn is based on the European Green Deal of 2019. On 30 March 2022 the European Commission has adopted a wide-scope ESPR proposal, including the creation of an EU Digital Product Passport (DPP). It is now with the European Parliament (EP) and the Council for adoption in the co-legislative procedure. The year 2023 will be key to finalise the requirements. ESPR could then start applying from 2024. The latest draft report by the EP ENVI Committee of 6 December 2022 suggests a further strengthening of the proposed rules. Given the wide scope of the proposal and the novelty of the requirements, there are various misconceptions about ESPR in the industry today. We would like to raise the most important ones and clarify the current understanding.
- Myth: “The Regulation will cover finished or consumer products only.”
- Truth: Any physical good placed on the EU market or put into service may be addressed. This also includes components, intermediate products and very complex high-end products such as defence equipment, space products or medical devices. There are only very limited exclusions, such as for food, feed and medicinal products.
- Myth: “Chemicals are out of scope as they are covered by REACH and CLP.”
- Truth: Chemicals – being “physical goods” – are in scope and now even proposed by the EP ENVI Committee as a priority product group to be regulated for the period 2024-2027. However, safety-related restrictions remain subject to REACH.
- Myth: “Ecodesign requirements and DPP will start applying upon adoption of the ESPR.”
- Truth: Commission delegated acts will be required post adoption of the ESPR (expected by 2024) to specify the requirements and make them applicable to defined product groups (product-specific approach). This is planned to happen between 2024 and 2030.
- Myth: “ESPR requirements will apply to all products at once.”
- Truth: The implementation of ESPR will follow a prioritisation approach, according to multi-annual Commission working plans. According to the EP ENVI Committee Draft Report of 6 December 2022 the candidate products for the 1st ESPR working plan are: Iron, steel; cement; aluminium; textiles, notably garments and footwear; furniture, including mattresses; tyres; detergents; paints; lubricants; chemicals; energy related products, whose implementing measures need to be revised or newly defined; ICT products and other electronics. A Commission public consultation on the 1st ESPR working plan is expected to start shortly.
- Myth: “Social aspects will not be addressed, only the environmental sustainability of products.”
- Truth: This is indeed foreseen in the Commission proposal of 30 March 2022. However, the EP ENVI Committee Draft Report now suggests inclusion in the Regulation also of social sustainability of products and due diligence aspects along the value chain!
- Myth: “The EU Digital Product Passport will replace existing REACH Art. 33 and SCIP reporting duties for articles.”
- Truth: This is not expected anytime soon, but those duties will be initially co-existing. The DPP is a decentralized tool and will be rolled out only over time for regulated product groups. In addition, the EP ENVI Committee Draft Report now suggests an additional general information obligation of suppliers of substances, mixtures and articles to provide ESPR-related information (new draft Article 25a).
- Myth: “Access to product data via the DPP will be the same for all interested parties.”
- Truth: Differentiated access rights will be granted for consumers, (other) economic operators and authorities, depending on what they need to know. There will be no public access as in the case of the SCIP Database. The details on how this should work are still to be elaborated. At the end of 2022 an EU-funded Consortium called CIRPASS has started preparing the ground for the gradual piloting and deployment of the DPP.
- Myth: “Substances of Concern (SoC) to be reported are identical with REACH SVHCs.”
- Truth: The SoC definition is much broader as it also covers a number of additional CLP hazard classes (e.g. skin sensitizers cat. 1, chronic hazard to the aquatic environment cat. 1 to 4, persistent chemicals according to the CLP Revision) and substances inhibiting circularity (i.e. that negatively affect the re-use and recycling of materials in the product in which they are present), as defined in Article 2(28) of the ESPR Proposal.
- Myth: “SoCs will always be the same group of substances, no matter the product group.”
- Truth: The Commission may provide exemptions for substances of concern or information elements from the information requirements. Also, substances inhibiting circularity will be determined per product group.
- Myth: “Similar to REACH, ESPR obligations will not directly apply to non-EU manufacturers.”
- Truth: The “manufacturer” definition under ESPR is not limited to EU entities!
- Myth: “The ESPR requirements will be adopted as proposed by the European Commission.”
- Truth: The previous Council discussions and EP ENVI Committee draft report of 6 December 2022 show that a number of significant changes to strengthen the proposed Regulation are still likely to occur. The final say on the content of ESPR will hence be with the European Parliament and the Council. Therefore, you are advised to stay tuned and monitor the co-legislative process.
At REACHLaw we can help you assess the impact of ESPR for your products, monitor the adoption process and start getting prepared for the upcoming regulation. Please let us know in case you are interested in our support, by sending an e-mail to email@example.com.
References for further information:
- Tim Becker, Ecodesign for Sustainable Products and the EU Digital Product Passport, The Commission’s ESPR Proposal of 30 March 2022 – Game-changer or Slow Burner? – Zeitschrift für Stoffrecht, Volume 19 (2022), Issue 3, available here.
- REACHLaw webinar on ESPR, DPP and Implications for companies of 10 November 2022 – available on our Youtube channel.
- European Commission ESPR Proposal of 30 March 2022, available here.
- EP ENVI Committee draft report on ESPR of 6 December 2022, available here.