AGEC law and fight against plastic: a long struggle

Law no. 2020-105 of 10 February 2020 on the fight against waste and the circular economy (AGEC) was the result of a consultation involving all stakeholders (local authorities, companies and NGOs) launched in October 2017. This text provides that reduction, reuse and recycling objectives (known as the “3R” objectives) are set by decree every five years. In order not to rush professionals too much, this law - which opened with an initial period of 2021-2025 - sets progressive deadlines, each corresponding to a major sustainability challenge. Of the hundreds of measures provided for by the law, most are aimed at removing disposable plastic and its harmful environmental effects by 2040.

This plastic is used in various forms, both in containers and in protective films. Examples include plastic used to protect goods on pallets, like fruit and vegetables sold in supermarkets. To counter this bad practice, bulk selling, defined by the French Consumer Code and pushed by the AGEC law, presents a credible alternative.

An extension of the definition of “bulk selling”

In the wake of the AGEC law, a so-called “Climate and Resilience” law of 24 August 2021 set the target of deploying bulk selling in certain types of stores by 2040. The idea here is to combat over-packaging and unnecessary packaging insofar as they use a significant quantity of single-use plastics, which are also non-recyclable. In addition to setting new restrictions for professionals, this law aims to permanently change consumer behaviour.

The AGEC law, for its part, amends Article L. 120-1 of the French Consumer Code, which defines bulk selling, and adds the context of “assisted service”, which extends the scope of the legal definition.
Sale by the cut, practised in meat, fish, delicatessen and cheese sections, is an example of this assisted service.
According to Article L.120-1, bulk selling is defined as “the sale to the consumer of products presented without packaging, in a quantity chosen by the consumer, in reusable or reusable containers. Bulk selling is offered on a self-service or assisted service basis at itinerant points of sale.”

“Long-term” exemptions for fruit and vegetables set to change

One type of product in particular has caught the attention of the legislator, both for environmental and public health reasons: fresh fruit and vegetables.
Thus, the AGEC law introduced into the French Environment Code (Article L. 541-15-10) the obligation, from 1 January 2022, for retailers selling unprocessed fresh fruit and vegetables to display them without packaging composed in full or in part of plastic.

The law provides, however, for a series of exemptions for fruit and vegetables that:

are packaged in batches of 1.5 kilograms or more

that present a risk of deterioration when sold in bulk

In a decree of 8 October 2021, the Government drew up a list of around forty fruits and vegetables that could continue to be sold in plastic packaging, specifying in each case until when this exception applied:

until 30 June 2023, for certain tomatoes, Brussels sprouts, green beans, grapes and peaches

until 31 December 2024, for chicory, asparagus, broccoli, mushrooms, lettuce and cherries, among others

until 30 June 2026, for ripe fruit, sprouted seeds, raspberries, strawberries and several berries.

At the end of 2021, Plastialliance as well as many professional plastic packaging and agricultural organisations asked the Council of State to cancel the said decree for excessive power. On 9 December 2022, the Council of State, the highest administrative court, annulled the government decree prohibiting the use of plastic packaging for fruit and vegetables. The Council of State essentially justified its decision on the basis of two arguments:

the list includes fruit and vegetables that do not present a clear risk of deterioration when sold in bulk

the list sets a time limit on the exemptions, whereas they should be definitive

New obligations aimed first and foremost at major retailers

The establishment of a sales area dedicated to bulk

Article 23 of the “Climate and Resilience” law provides that on 1 January 2030, stores of more than 400 m² will have to set aside dedicated spaces to selling products without primary packaging. This mainly concerns hypermarkets and supermarkets.
The law provides that this space dedicated to bulk must constitute:

either 20% of their retail space for consumer products;

or a system resulting in an equivalent effect expressed in number of references or proportion of sales.

The law provide however, for the possibility of adjusting this objective by decree, according to:

product categories;

health and safety requirements;

the specific characteristics of distribution networks, in particular certain types of specialised shops;

adaptations required with regard to the practices of producers, distributors and consumers.

This Article 23 is based on the definition of consumer products provided in Article L. 441-4 of the French Commercial Code, namely “non-durable products with a high frequency and recurrence of consumption”. They are listed in Article L. 441-1 of the French Commercial Code.
The objective will be calculated solely on the basis of the sales area of these products alone. These products covered by the objective defined in this article are those presented without primary packaging within the meaning of Article R. 543-43 of the French Environmental Code, namely “packaging designed to constitute, at the point of sale, an article intended for the end user or the consumer”.

A duty of care by professionals regarding containers

With the removal of plastic packaging, professionals must provide their customers with alternative containers or encourage customers to bring their own reusable packaging.
In this second case, professionals in the food sector have a duty of care. They must:

check the reusable nature of the packaging brought by the customer to its stall;

ensure that the customer provides a container suitable for transport and proper storage of the product;

ensure the proper hygiene and cleanliness of the container brought by the customer;

Where applicable, the legislator implies that it is the duty of professionals to refuse the sale of fresh products in rare cases where the customer brings a container that is not properly washed or unsuitable for the product sold.

Blockchain: outstanding food traceability for bulk

For food products, primary plastic packaging replaced the role of the salt in the pantries of yesteryear, which made it possible to ensure that products were well preserved and avoid them perishing. With the removal of plastic packaging in supermarkets, food safety needs to be reorganised for products within stores. Without their plastic protection, these products are suddenly exposed to all sorts of increased risks during storage, transport and then when presented at the point of sale: contamination, rotting, soiling and loss.
Not to mention that in the case of wrapped fruit and vegetables, the packaging also served a purpose to provide information, as it included useful information for the consumer as well as the various commitments of professionals.

Blockchain, through its data storage and standardisation function, is able to provide both professionals and end consumers with the necessary bearings and reassurance. They can, for example, source reliable data at any time at each stage of the supply chain(concerning the place and date of harvesting, the harvesting methods used, the farm concerned, the various entities through which the product has passed, etc.). By setting up a digital audit of their specifications, professionals can also verify that their requirements have been met. Retailers thus gain visibility over their suppliers and better responsiveness when it comes to identifying and removing batches of fruit and vegetables unfit for consumption.
A technology that promotes transparent practices in the food sector, able to facilitate consumer arbitrage for more responsible consumption.
To carry out this project to make the food sector more accountable and transparent in the age of bulk, Connecting Food has developed its web app in order to best meet the current and future needs of players in the fruit and vegetable sector.

In conclusion, the AGEC law, which seeks to eliminate single-use plastic packaging in favour of bulk selling in supermarkets, is in alignment with the government’s objective of zero disposable plastic by 2040.