I. Eliminating waste and the circular economy – new French law
Phasing out disposable plastic, improved production, providing consumers with better information, fighting against waste and in favor of the widespread reuse of materials, and taking action acting against in-built obsolescence are the principle preoccupations of Law No 2020-105 of 10 February 2020 relative to combatting waste and to the circular economy published in the Journal officiel on 11 February 2020. The new law contains a number of diverse provisions which are either immediately applicable or deferred until 1 January 2021, 1 July 2021, 1 January 2022 or January 1, 2023, and some which will require the issuing decrees.
We will discuss the main provisions amending the Environment Code focusing on those that impact our consumer law. Law No 2020-125 is in five parts as follows:
I.1. Strategic objectives for managing and preventing the production of waste:
New Article L. 541-10-17 of the Environment Code lays down the aim of ending the marketing of single-use plastic packaging by 2040. The ban on plastic cups, plates and cotton buds, which had already taken effect on 1 January 2020, will be followed next year by a ban on plastic straws, cutlery, stirrers etc. Reduction, re-use, and recycling targets will then be set by decree for the period 2021-2025, and subsequently for each consecutive 5-year period.
I.2. Keeping consumers informed
The law requires producers and importers of waste generating products to inform consumers about their environmental qualities and characteristics, including the incorporation of recycled material, the use of renewable resources, sustainability, compostability, repairability, possibilities of re-use, recyclability and the presence of dangerous substances, precious metals or rare earth elements, consistently with European Union law (new Art. L. 541-9-1, Environment Code ). From 1 January 2022, internet service providers and mobile operators will also have to display information on the amount of data consumed, as well as equivalent greenhouse gas emissions linked to that consumption (new Art. L. 5232-5, Public Health Code).
From 1 January 2021, a repairability index will be in place to allow any person (seller or consumer) to ask producers, importers, distributors or other marketers of electrical and electronic equipment whether a product is repairable, difficult to repair or not repairable, bearing in mind that the criteria used to develop this index must include the price of spare parts necessary for the proper functioning of the product and, whenever relevant, the presence of a usage meter visible to the consumer (new Art. L. 541-9-2, Environment Code.). This would be a simple index (scale of 0 -10) affixed directly to the product or its packaging and at the point of sale. A decree in Council of State sets out the list of products and equipment covered by the provision, it being understood that the development of the repairability index concerns 5 categories of pilot products (washing machine, televisions, smartphones, laptops and lawn mowers) but is intended to apply to other categories of electrical and electronic goods. From 1 January 2024, a sustainability index will be implemented on the same principle.
To facilitate repair and promote the use of spare parts from the circular economy, the law supplements Article L. 111-4 with regard to electrical and electronic equipment (mobile phones, computer equipment, small and large appliances, televisions, hi-fi systems, etc.).
Under the new provisions – applicable from 1 January 2022 – when information on the availability of spare parts for electrical and electronic equipment or fittings is not provided to the professional seller, the spare parts essential to the use of those goods will be deemed unavailable. Manufacturers or importers of this type of equipment must inform professional resellers and repairers, on request, of the details of the elements constituting the guarantee of availability of spare parts. In addition, producers of household appliances, small IT and telecom equipment, screens and monitors will have to make their parts available for a period set by decree issued in the Council of State, which cannot be less than five years from the date of placing the last unit of the model on the market. This information must be provided to the consumer by the seller in a legible manner prior to the conclusion of the contract and confirmed in writing when the goods are purchased. The list of spare parts available must be displayed at the point of sale. The manufacturer will also be able to indicate this on the product. The deadline for the availability of spare parts by the manufacturer to the seller or repairer must be 15 working days. The repairer will also be under an obligation to propose spare parts from the circular economy (new Art. L 224-109, Consumer Code). The same obligation to inform consumers of the availability of spare parts is imposed on manufacturers of medical equipment under Article L. 224-110, just as new Article L. 224-111 obliges repairers of medical equipment to propose spare parts from the circular economy. In addition, amended article L. 111-4 provides that, ”for certain categories of goods defined by decree, when a spare part essential to the use of a good available on the market can be manufactured by means of three dimensional printing and when it is no longer available on the market, the manufacturer or importer of movable goods [must], subject to compliance with intellectual property rights and in particular subject to the consent of the of intellectual property holder, provide professional sellers or repairers, whether approved or not, who request the manufacturing blueprint by means of three-dimensional printing of the spare part or, failing this, the technical information useful for the development of this plan available to the manufacturer”. All of these provisions are sanctioned by an administrative fine not exceeding EUR 3,000 for natural persons and EUR 15,000 for legal persons.
Transposing Directive No 2019/771 on contracts for the sale of goods which, from 1 January 2022, repeals and replaces Directive No 1999/44 on certain aspects of the sale of consumer goods and associated guarantees, the law on the circular economy adds a new section concerning consumer information and seller’s obligations relating to software updates in the Consumer Code. Article L. 217-21 requires manufacturers of goods containing digital elements to inform the seller of the period during which updates to the software supplied when the goods are purchased remain compatible with normal use of the device. Under Article L. 217-22, for goods with digital elements, the seller must ensure that the consumer is informed of updates, including the security updates necessary to ensure that the goods remain in conformity, as well as of the methods of their installation and the consequences of any refusal to install. Therefore, the seller is not responsible for any lack of conformity arising from the non-installation of the update concerned. Under the Article L. 217-23, the seller ensures that the consumer receives the updates necessary to maintain the conformity of the goods during a period that the consumer can reasonably expect. This period cannot be less than two years, unless an exception is fixed by decree. These provisions are effective immediately.
Furthering the aim of improving the provision of information to consumers, the law also prohibits all advertising giving “the impression, through coordinated promotional operations at national level that the consumer benefits from a price reduction comparable to [promotional] sales, outside of the legal [sales] period”, which will henceforth be deemed misleading under the terms of Article L. 121-4, 23°, of the Consumer Code.
Although part of the section on information to consumers, the following provisions are more precisely aimed at promoting repairability and combating in-built obsolescence. The system of presumption of pre-existing non-conformity applicable to second-hand goods within the framework of the legal guarantee of conformity is thus modified: as of 1 January 2022, a non-conformity arising within a period of 12 months – instead of the current six – from delivery will be presumed to have existed at the time of delivery in the absence of evidence to the contrary (Art. L. 217-7, Consumer Code). Further provisions are added to Article L. 217-9: also from 1 January 2022, any product repaired under the legal guarantee of conformity will benefit from a six-month extensionof the guarantee. In addition, where the consumer chooses to have the item repaired, but it is not carried out by the seller, the consumer may demand a replacement, which in that case triggers a renewal of the legal guarantee of conformity. This provision will apply either at the end of the one-month period provided for in paragraph 1° of Article L. 217-10, or before that period when the non-repair is a result of a decision taken by the seller.
Lastly, the chapter on deception has also been supplemented with the introduction of two new offenses aimed at consolidating the fight against in-built obsolescence. With the exception of certain products defined by decree or based on legitimate reasons, in particular the safety or health of users, new Article L. 441-3 of the Consumer Code therefore prohibits “any technique, including via software, by which a developer on the market purports to render impossible the repair or refurbishing of an appliance outside its approved channels”, as repairability of the product is considered as one of the essential characteristics of the good or service as defined in Articles L. 111-1 to L. 111-7. Under new Article. L. 441-4, “any agreement or practice aimed at limiting the access of a repair professional to spare parts, instructions for use, technical information or any other instrument, equipment or software allowing the repair of products is prohibited”. However, new Article L. 441-5 expressly provides that where the user is at fault (improper use or failure to comply with the instructions), the manufacturer having designed the device can provide for users to carry out repairs themselves and if adequate safety instructions for users to do so, and thus avoid incurring liability. These provisions are effective immediately.
I.3. Promoting redeployment and re-use/the functional economy and Product Service Systems in the fight against waste
Like in the field of mass catering where it is already a requirement, the agri-food sector must put in place measures to reduce food wastage by 1 January 2021 (Art. L. 541-15-3, Environment Code). In particular, a “national anti-food waste label” was created which can be granted to any legal person contributing to the national objectives of reducing food waste (L. 541-15-6-1-1). Producers, importers and distributors of new non-food products intended for sale are required to redeploy – in particular by donating essential products to associations fighting against poverty and social welfare structures (Article L. 541-15-8). From 1 January 2022, the dispensing of certain medications from pharmacies on a per-unit basis will be possible (art. L. 5123-8, Public Health Code).
The Consumer Code now has a chapter devoted to business practices to be promoted. The sale of products without packaging, and in particular the sale in bulk for everyday consumer goods, including for distance selling has been approved (L. 120-1, Consumer Code). New article L. 120-2 provides that in retail stores, re-usable containers can be provided by retailers or brought in by consumers and a notice must be displayed in store informing customers on the methods for cleaning and suitability of reusable containers. In addition, on 1 January 2021, large areas of more than 400 m2 must provide reusable containers (with or without charge) (Art. L. 112-9, Consumer Code).
I.4. Responsibility of producers
The law focuses heavily on the reform of “extended producer responsibility” (REP – responsabilité élargie du producteur) which obliges manufacturers of products which generate waste to finance the end of life of products. Article L. 541-10 of the Environment Code provides that “in application of the principle of extended producer responsibility, any natural or legal person who designs, manufactures, handles, processes, sells or imports waste-generating products or elements and materials used in their manufacture, described as a ‘producer’ for the purposes of this sub-section, may be required to to provide or contribute to the prevention and management of the waste arising therefrom, as well as to adopt an eco-design approach for products, to promote the extension of the lifespan of said products by ensuring that all of the professional and individual repairers concerned have the necessary resources available for efficient maintenance, and to support redeployment, reuse and repair networks such as those managed by social welfare and solidarity structures or promoting reintegration through employment, to contribute to development aid projects for the collection and treatment of their waste and to develop the recycling of product waste“. Several large families of products are affected by extended producer responsibility: packaging, batteries, medicines, tires, paper and newspapers, textiles and shoes, furniture, household appliances, etc. The law provides for the extension of its scope to new products: under the terms of Article L. 541-10-1 of the Environment Code, business packaging, building construction products or materials, toys, sporting and leisure items, DIY and garden articles, waste oils, cigarette butts, chewing gum, sanitary textiles (wet wipes, paper towels, cotton wool, diapers, etc.), fishing gear. According to a bonus-malus system, the financial contributions of producers who collectively fulfill the obligations mentioned in Article L. 541-10, are adjusted , according to environmental performance criteria (quantity of material used, incorporation of recycled material, use of renewable resources managed sustainably, durability, repairability, possibilities of re-use, recyclability, advertising or promotional target of the product, absence of ecotoxicity and presence of dangerous substances), with the adjustment taking the form of a premium granted by the eco-organization to the producer when the product meets the performance criteria and a penalty imposed on the producer by the eco-organization when the product departs from it. In addition, the seller of a product falling under the extended producer responsibility principle must provide the buyer, on demand, with the identification number under which the producer fulfilling the obligations of extended liability for the product is registered (Art. L. 541-10-10).
The other provisions of the chapter are dedicated specifically to plastic with, for example, the establishment of a collection rate target of 77% for recycling plastic beverage bottles by 2025 and 90% by 2029 and the prohibition of the placing on the market of substances in the form of microplastics (Art. L. 541-15-12 C. approx.), or the use of new collection devices, in addition to those which already exist , such as the bottle deposits with refunds (Art. L. 541-10-11).
I.5. Illegal dumping of waste
The law reinforces the powers of mayors and the sanctions that can be taken against individual who dump waste. From now on, in the event of the unlawful dumping of waste where the person responsible has been identified, mayors may impose a maximum fine of EUR 15,000 before any prior notification to recover the waste (Art. L 541-3, Environment Code) In the event that the offender does not comply, the mayor may impose a daily penalty not exceeding EUR 1,500. Mayors can also transfer their powers of enforcement in matters of dumping, deposit and management of waste to the chairs of local authority groups, when the latter are competent in matters of household waste collection (Art. L. 5211-9-2, Territorial collectivities Code). On authorization of the public prosecutor, any vehicles used for the purpose of disposing of waste unlawfully can be immobilized and impounded (Art. L. 541-46, IX, Environment Code). The law also has an impact on the Insurance Code, since from 1 July 2021, when an insured owner of a technically or economically irreparable vehicle wishes to terminate the insurance contract, proof of destruction of the vehicle, its repair or the underwriting a contract with a new insurer must be provided. In addition, under new Article L. 210-10-1 of that code, in its initial correspondence with the victim of a road accident whose vehicle is a write-off, the insurer must inform it of its obligations with regard to the disposal of an end-of-life vehicle.