The French Triman Logo: To Comply Or Not To Comply?

By Rutger Oldenhuis LLM

(Includes important update per 16 Februari 2023)

Introduction

In France, a law on product labelling recently entered into force, which is causing quite a stir. The law, which requires companies to use the so called Triman logo and waste sorting pictograms, may have major consequences for companies selling consumer products in France, including sporting goods, apparel and shoes. The requirements of the new French labelling legislation are no sinecure and should not be underestimated. Companies that sell products throughout Europe are expected to adjust their labelling specifically for France. That entails an enormous burden and increase of cost. Large multinationals may – reluctantly – absorb this, but for SMEs, that may not be so easy. Moreover, extra labelling creates more waste, whereas companies – encouraged by the EU Commission – need to reduce their carbon footprint.

Many sources suggest this new law is mandatory, whereas non-compliance would lead to high fines. That is not entirely correct and needs to be nuanced. At the same time, a large number of industry associations (including FESI), supported by the EU Commission, are of the opinion that the French law is violating the EU Treaty. Furthermore, we may expect the EU to come with harmonised labelling in the near future. That leaves companies with a difficult question: should we comply or not? To help companies answering that question, in this article I will explain what the new French labelling requirements essentially are about and will share some insights and practical tips.

What is the law about?

As of January 1, 2022, a law has entered into force in France that requires companies to place the so-called Triman logo on products or packaging that are subject to ‘Extended Producer Responsibility’ (EPR). The OECD defines EPR as “a policy approach under which producers are given a significant responsibility – financial and/or physical – for the treatment or disposal of post-consumer products.” In other words, the polluter-pays principle.

The French Triman logo is not new. The use is mandatory since 2015, but the number of products involved was limited and the logo was also allowed to ‘only’ be placed on the website. However, the new law goes a lot further.

First of all, the list of products that fall under the EPR has been substantially extended. For example, sports equipment, including bicycles, as well as textile clothing and shoes are now also included. And since all packaging – including non-recyclable – now also falls under the French EPR scheme, most companies selling to consumers in France will be affected by the new legislation.

Secondly, in addition to the Triman logo, so-called Sorting Information must be depicted by means of pictograms. That means that symbols indicate how consumers should separate the waste from the product and where to dispose of it. If different elements, parts or waste of the product are subject to different disposal procedures, that should be specified element by element, which makes the new requirements a lot more burdensome.

What Sorting Information symbols do I need to use?

Although you would expect France to come up with a harmonised approach, unfortunately that is not the case. The design of the Sorting Information pictograms is left to each Producer Responsibility Organisation (PRO), subject to approval by the French authority. For example, the pictograms used for sporting goods (organised by Ecologic) may look different than the pictograms used for clothing and textile (organised by re_Fashion) and may look different than the pictograms used for packaging (organised by CITEO).

What is the deadline to comply?

The French law does not stipulate any harmonised fixed dates. Deadlines of implementation, and for disposal of stock, depend on the date of approval of the pictograms submitted by each individual PRO to the French authority. For example, for clothing and footwear, according to re_Fashion, by 1 February 2023 at the latest (or 1 August 2023 for products manufactured or imported before 1 February 2023) the information “must be affixed on all items of clothing, household linen and footwear”[1]. However, for packaging waste, according to CITEO, marketers have until 8 September 2022 to bring their packaging into compliance. Then, they have until 8 March 2023 to sell existing stocks of packaging manufactured or imported before 9 September 2022. As of 9 March 2023 all packaging must include Sorting Information unless exempted by law. These are just two examples. To know which deadlines apply, companies will have to check with each relevant PRO.

Challenges

Following the French labelling requirements, companies may face some practical challenges. For example, a shoe box may be shipped to a consumer in a carton box or a plastic bag. Some shoes may have a hang tag attached to it, some may not. There may be plastic or other material inside the shoe box that you don’t know about. Et cetera. If it is unknown upfront what elements are contained in a box and how a product will be packed and shipped, which Sorting Information pictograms should be used? It is very burdensome, if not impossible, to customise the Sorting Information per each Consumer Sales Unit and have different pictograms printed or attached to each element of your product and packaging materials.

Solutions

Although it is probably not envisaged by the French legislator, a practical solution may be to use a ‘one-type-fits-all’ Triman logo, consisting of pictograms of products and packaging materials that are likely to be used when shipping and selling your products (belonging to the same product family). The risk may be that a pictogram is shown of waste material that is actually not used, but what damage could that really do? Furthermore, instead of printing them on the product or packaging, the French law also allows for placing the Triman logo and Sorting Information on documents supplied with the product. Taking online D2C sales as an example, the Triman logo and Sorting Information pictograms could be shown on the order confirmation form included in the box or bag. When needed, pictograms can be changed very easily, making compliance within your supply chain a bit less burdensome.

Violation of the EU Treaty

But how about the European Union’s Holy Grail: the single market? Doesn’t this new French law create an obstacle to the free movement of goods? Can France impose these additional labelling requirements, just like that? It is true that, under certain circumstances, an EU Member State may not simply introduce national legislation if it creates an obstacle to the free movement of  goods, unless there would be a justification. There is a principle in the EU known as the “mutual recognition principle”. Based on this principle, in the absence of harmonised rules, once a product is lawfully placed on the market of one of the EU member states, other member states cannot create market barriers based on national technical rules (including product labelling). In other words, if a product without the Triman logo is lawfully placed on the market of e.g. Germany or the Netherlands, France cannot stop this product from being sold in France, unless they have a justification. The key question is therefore whether France has a justification for imposing these new labelling requirements. The French legislator think they do, invoking the protection of the environment. The European Commission on the other hand – spurred on by a large number of business associations – does not[2], but to date it has not gone so far as to start infringement proceedings against France.

To comply or not to comply?

Although many sources suggest that the new labelling requirements are mandatory, the French law actually allows for different labelling than the Triman logo. However, the question is whether it will really help companies. Based on the French law, the Triman logo can only be replaced by another label if it is similar to the Triman logo and subject to mandatory law of the EU or a member state. According to my appraisal, that is a wrong codification of the mutual recognition principle. More importantly, the labelling requirements are likely violating the EU Treaty. That triggers the question for companies whether or not to comply. Although the French legislator remarkably has chosen for a relatively mild sanction regime (fines can be up to a maximum of €15,000), you can never be sure if your products will ultimately be banned from the French market. On the other hand, we may wonder if France would really be confident enough to let it come to legal proceedings, now that the labelling requirements are likely violating the EU Treaty.

Problem-solving procedure: SOLVIT

The decision whether or not to comply with the French labelling requirements may strongly depend on the risk of fines and perhaps even a sales ban in France, and consequently, expensive legal proceedings. However, for situations like these, the EU offers a service called SOLVIT that may be unknown to many companies.

SOLVIT[3] is a service provided by the national administration in each Member State that aims to find solutions for individuals and businesses when their rights have been breached by public authorities in another Member State. SOLVIT presents itself as an effective non-judicial, problem-solving mechanism that is provided free of charge. It works under short deadlines and provides practical solutions to individuals and businesses when they are experiencing difficulties in the recognition of their Union rights by public authorities. Where the economic operator, the relevant SOLVIT Centre and the Member States involved all agree on the appropriate outcome, no further action should be required. When the SOLVIT’s informal approach fails, the EU Commission would be empowered to make a decision within 45 working days. Since we already know the position of the Commission vis-à-vis the new French labeling requirements, the SOLVIT procedure may be an interesting option.

SOLVIT is only relevant for cross-border conflicts in the EU. For companies that produce locally in France, compliance with the French Triman logo will be a national matter. Therefore, the SOLVIT procedure unfortunately will not be accessible to them.

French dealer ban

For companies that sell in France through a dealer network, there is another risk. The French authority may visit a shop and impose a sales ban on products that do not comply with the labelling requirements. French dealers may therefore be reluctant to sell products that are not compliant. It will not be the first time that the compliance department of large French retail chain imposes a sales stop of products that do not comply with the applicable labelling requirements. The question is how sensitive French dealers will be for the argument that the French labelling requirements are actually violating EU law.

Conclusion

Although the French authority would like us to believe that the new labelling requirements are harmonised, implementation is left to individual PROs, resulting in a mess of different pictograms and deadlines and making compliance a headache for companies. Furthermore, the new requirements violate the EU Treaty. It is also expected that the EU will sooner or later come with harmonised labelling for the entire EU market. That triggers the question for companies whether or not to comply with the French labelling requirements. However, the risk of a French sales ban, either imposed by the French authority or French dealers, is not an attractive one. On the other hand, the question is whether the French authority would be confident enough to let it come to a trial. If so, SOLVIT seems like a fast, attractive and promising dispute resolution service. In any case, for companies selling in France, it’s a tough call!

(Update 16 February 2023 | Source February infringements package: key decisions (europa.eu))

Commission calls on FRANCE to ensure that its labelling requirements concerning waste sorting instructions comply with the principle of free movement of goods

The European Commission decided to open an infringement procedure by sending a letter of formal notice to France (INFR(2022)4028) for failure to address its labelling requirements concerning waste sorting instructions. To be placed on the French market, household products belonging to an extended producer responsibility (EPR) scheme have to be materially labelled with the ‘Triman logo’, signage informing that the product is the object of sorting rules, and the ‘infotri’, information specifying the methods for sorting.

The provision of waste sorting instructions to consumers is currently not governed by harmonised EU rules. National laws adopted in this field shall not create unnecessary burden internal market trade. In this context, the imposition of national-specific labelling requirements risks undermining the principle of free movement of goods and can lead to counterproductive environmental effects. Such measures can also lead to increased material needs for additional labelling and additional waste produced due to larger than necessary sizes of the packaging.

The French authorities do not seem to have conducted a sufficient analysis of the proportionality of their policy choice as other suitable options, less restrictive of trade between Member States, are available. France is also in breach of the notification obligations under the Single Market Transparency Directive (Directive (EU) 2015/1535) to the extent that the law was not notified to the Commission at a draft stage, prior to adoption. France now has two months to address the concerns raised by the Commission. Otherwise, the Commission may decide to send a reasoned opinion to France.

[1] Unlike what re_Fashion suggests, there is no obligation to affix the logo on the product. The logo can also be depicted on the packaging or on a document supplied with the product.

[2] See TRIS/(2020) 03628. Not publically available. Available for free with the author upon request.

[3] SOLVIT – EU rights problem solving when working, living or doing business in another EU country – European Commission (europa.eu)