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The ‘AGEC’ Law contains new environmental provisions for companies producing waste generating products, in order to improve the information provided to consumers prior to purchasing. This article explains, in light of the information available to date, the provisions relating to ‘QCE’ information.

• Origin of the QCE information obligation
• Targeted products and content of the QCE information
• Presentation of information
• Deadlines and companies involved
• Implementation issues for operators
• Sources

This article is for information purposes only. It cannot guarantee that the information is complete and up-to-date. It cannot be used as a substitute for legal advice and opinion.

Origin of the QCE information obligation

The obligation to provide information on the environmental qualities and characteristics of waste generating products is set out in Article 13 of Law No. 2020-105, known as the ‘AGEC’ Law¹.

This obligation reinforces the existing framework of (i) the 2009 ‘Grenelle’ Law which provided that ‘consumers must be able to have access to sincere, objective and complete environmental information on the overall characteristics of the product/packaging couple’² and (ii) the 2015 Law on energy transition for green growth³ which required producers communicating on an environmental aspect of their products to make their main environmental characteristics available to consumer in order to fight against greenwashing.

However, this information was rarely provided despite the existence of rules, perhaps because these rules did not specify the content or the modalities of the information to be given.

In addition, in recent years, there has been a growing demand from consumers to have more information on this subject before they make a purchase. With this new system, the AGEC law has harmonized information in order to (i) make it easier for consumers to understand, (ii) make the information systematic and accessible, and (iii) facilitate controls.

Targeted products and content of the QCE information

The products concerned are only new products intended for consumers. On the other hand, the QCE information does not concern BtoB relations, nor reconditioned or second-hand products.

It concerns products that generate waste, i.e. products that are part of an “EPR” recycling scheme.

For these products, producers and importers inform consumers about their environmental qualities and characteristics.

A restrictive list is given by Article 13 of the AGEC law according to which the QCE information relates to:

• the incorporation of recycled material,
• the use of renewable resources,
• sustainability,
• compostability,
• repairability,
• the possibilities of reuse,
• recyclability,
• the presence of hazardous substances, precious metals or rare earths,
• traceability,
• the presence of plastic microfibers.

This QCE information also includes information on premiums and penalties (= eco-modulations/eco-contributions) paid by the producer to the eco-organizations, based on environmental performance criteria.

The exact content of the QCE information and the list of products covered are set out in the implementing decree No. 2022-748⁴, which sets out the implementation procedures and the definition of environmental qualities and characteristics.

Here are some examples:

– Operators must inform the consumer about the incorporation of recycled material.

• Which products?

For household packaging, printed paper, electrical and electronic equipment, batteries and accumulators, contents and containers of chemical products, furnishings, textile products (except leather goods), sports and leisure goods, DIY and garden equipment, and vehicles.

• Which presentation?

The product sheet shall contain the statement “product with at least [%] recycled content” or “packaging with at least [%] recycled content”. If the product does not contain recycled material, it is possible to indicate “product does not contain recycled material” or to leave the product sheet empty.

– Information on recyclability:

This information is communicated to the producer by the eco-organization to which it has transferred its extended responsibility obligation and is based on 5 criteria to be met.

• Which products?

The following EPR products are concerned: household packaging, printed paper, construction products or materials, electrical and electronic equipment, batteries and accumulators, contents and containers of chemical products, furnishing items, textile products (except leather goods), toys, sports and leisure goods, DIY and garden items, and vehicles.

• Which presentation?

The product sheet must indicate “mainly recyclable product”, “mainly recyclable packaging” when these 5 criteria are met; if the recycled material represents more than 95% by mass of the waste, the mention “entirely recyclable product” is possible.

– For information on the presence of a hazardous substance:

• Which products?

This information applies to any product (= it is not specifically linked to one or more EPR channels). It concerns products in which a hazardous substance is present in a concentration greater than 0.1% by mass percentage in application of the European regulation (regulation n° 1907/2006 “REACH”).

• Which presentation?

This information is expressed as the words “contains a dangerous substance” or, where the dangerous substance present is contained in the REACH list, “contains a substance of very high concern”, accompanied by the name of each dangerous substance present.

Presentation of information

The “QCE” information is done electronically, so this information is not added to the information on the product labels. It must be visible or accessible to the consumer at the time of purchase.

In concrete terms, the producer or importer makes the QCE information available on a website or webpage entitled “product sheet on environmental qualities and characteristics” (= « fiche produit relative aux qualités et caractéristiques environnementales »).

This information must be available for two years following the last time the product was placed on the market.

If the company wishes to voluntarily communicate information on the environmental qualities and characteristics of its products on a material support (label, displays in store, etc.), this information must be presented in the same way as the dematerialized QCE information.

For the implementation of this new obligation of information, operators can refer on the FAQ⁵ of the Ministry of Ecological Transition, which specifies certain “practical” points, particularly concerning the presentation of the information:

• The title of the site, page or section should be « fiche produit relative aux qualités et caractéristiques environnementales », with the name and reference of the model concerned.
• The term “accessible” does not mean “visible”, which means that the information does not have to be displayed in the shop or on the label. It simply has to be easily accessible on the producer’s website at the time the consumer makes his purchase.
• A product sheet must be specific to a product model. This means that it is not possible to create a section on recyclability and list all the products concerned, for example.
• A product sheet can have two parts: one on the product and one on the packaging.
• Negative statements are not required in the product sheet (e.g. “product does not contain recycled material”).

Finally, for the specific case of information on the presence of hazardous substances, it is possible to make this information available through the Scan4Chem application. A French order should be published in this sense in the near future, and the draft decree is currently being notified to the European authorities in the TRIS database⁶.

Deadlines and companies involved

The obligation on the environmental qualities and characteristics of the product generating waste does not apply in a general way to all the operators.

First of all, it concerns:

• producers of waste generating products (= individual or legal entity that manufactures the product, designs or manufactures it and puts it on the market under its own name or brand),
• importers of waste generating products (= individual or legal entity who places a product from a third country on the French market)
• any other person who places waste-generating products on the market.

This means that distributors, who do not fall into any of the above cases, are not subject to this obligation.

In addition, there is a first level below which companies will not be concerned by this new obligation, i.e. a turnover of more than 10 million euros and the placing on the national market of at least 10,000 units of waste generating products (Article R. 541-220 of the Environmental Code).

Then, if the company is above these thresholds, the QCE information obligation comes into force in stages:

• From 1^st January 2023 in the event of an annual turnover of more than 50 million euros and the placing on the French market of at least 25,000 units of waste-generating products.
• From 1^st January 2024 for an annual turnover of more than 20 million euros and the placing on the national market of at least 10,000 units of waste generating products.
• From 1^st January 2025 for an annual turnover of more than 10 million euros and the placing on the national market of at least 10,000 units of waste generating products.

The authorities’ FAQ specifies that these thresholds must be calculated cumulatively for all products falling into the EPR channels mentioned and placed on the French market by the operator.

Implementation issues for operators

This new obligation, although dematerialized, can be complex to implement, especially for multi-product companies.

Firstly, a product can be concerned by several QCE information. It is therefore necessary to collect all this new data. This compilation of data can be complex in the case of imported products for example, as it is a French obligation that will require educational work with the various foreign suppliers.

Then, some information is not yet available according to the EPR channels (in particular because some channels are still in the process of being finalized, such as the one for sports and leisure articles, for example). For this reason, the authorities provided for tolerance periods at the end of 2022. Thus, for the information on recyclability that must be given by the eco-organizations, the authorities have granted a tolerance period in the controls until 1^st July 2023 to allow the transmission by the eco-organizations of the methods of calculation of recyclability because of delay in their development. From the date of transmission, manufacturers will have a maximum of 3 months to add this information to their “product sheets”.

Finally, some information can be complex to provide because it can change rapidly depending on the product, for example information on traceability for textile products or on the presence of dangerous substances, precious metals or rare earths. It is therefore necessary to regularly update the information on the product sheet.

Regarding potential sanctions, in case of non-compliance with this new information obligation, the risk is an administrative fine of up to 3,000 euros for an individual and 15,000 euros for a legal entity⁷. The operator may be subject to a misleading commercial practice regarding the environmental impact of the products⁸. In this case, the maximum penalty is two years’ imprisonment and a fine of 300,000 euros for an individual and 1,500,000 euros for a legal entity. The amount of the fine may be increased, in proportion to the benefits derived from the misleading practice, to 10% of the average annual turnover and, in the specific context of environmental claims, this percentage may be increased to 80% of the expenses incurred in carrying out the misleading practice.

Sources

1) Law n° 2020-105 of 10 February 2020 on the fight against waste and the circular economy, known as the “AGEC” law

2) Article 54 of Law No. 2009-967 of 3 August 2009 on the implementation of the Grenelle Environment Forum

3) Article 90 of Law No. 2015-992 of 17 August 2015 on the energy transition for growth

4) Decree No. 2022-748 of 29 April 2022 on consumer information on the environmental qualities and characteristics of waste generating products

5) Q&A – Order on consumer information on the environmental qualities and characteristics of waste generating products

6) Draft order on the provision of information on the presence of hazardous substances in waste generating products by means of an application currently being notified TRIS

7) Article L541-9-4-1 of the Environment Code

8) Article L132-2 of the Consumer Code