The EU's sweeping new product sustainability framework promises to transform how goods are tracked, labelled and recycled.

But what does it mean for the growing number of textile, garment and footwear retailers who are already making sustainability a core part of their offer by trading in second-hand or recycled goods or materials, where traceability is limited at best and often impossible?

The answer, for now, is more reassuring than alarming. The future, however, is less certain.

At the heart of the new framework sits the Digital Product Passport (DPP), an ambitious tool that acts as a digital identity card for products, storing information on materials, origins, repairability, and environmental impact. 

The DPP does not apply automatically to all goods; it is activated on a product-group-by-product-group basis through delegated acts. Textiles, garments and footwear are a priority product group, and a delegated act is imminent. 

The DPP regime is clearly designed with manufacturers of new goods in mind – businesses that know exactly what went into a product. For second-hand retailers or those who offer goods made from recycled materials, the obvious problem is: what happens when a product's material history is simply unknown?

The EU Commission have made clear that the framework is designed to incentivise, not penalise, circular business models with exclusions for those making available for the first time on the market, used textile products assessed as fit for re-use, or textile products derived from such used or waste products or their parts, with a view to supporting re-use and a prolonged lifetime, including through repair, refurbishment, upgrading, remanufacturing and upcycling. So far so good, but the legislative drafting does not yet translate that intent into workable legal certainty for the full spectrum of mixed-composition products that the upcycling and remanufacturing industries produce. 

There are some helpful concessions, for example, EU-origin second-hand goods are not treated as being "placed on the market" for the first time and are therefore not subject to ecodesign requirements, and collection systems must accept all textiles regardless of material composition, condition, or origin, but the framework does not currently provide a mechanism for retrospectively creating a DPP for second-hand textiles where material composition and origin are unknown. 

The position is complex and is about to become more complex as the table below reveals:

The Ecodesign for Sustainable Products Regulation (ESPR) deliberately distributes obligations across the entire supply chain namely, the manufacturer, the authorised representative, the importer, the distributor, the dealer, and the fulfilment service provider. In addition, providers of online marketplaces are separately regulated under the framework. Given that a delegated act is imminent for textiles, garments and footwear, the window to influence the outcome may be shorter than many realise.

As things currently stand, Extended Producer Responsibility (EPR) is not an 'own goal' for the pre-loved and responsible fashion sectors, but the legislative timetable is moving quickly and retailers with significant exposure to textiles, garments and footwear falling into the areas of uncertainty highlighted in the table should monitor the delegated act process closely and start to plan. If products are designed with the regulations in mind, retailers can reduce the burden further down the line.

If your business trades in second-hand, upcycled or responsibly sourced textiles, now is the time to act – speak to our specialist retail and supply chain team to understand your EPR and Digital Product Passport obligations.