Many fashion brands with established donation programmes assume that donation is their primary compliance route under the ESPR destruction ban. The regulatory structure is more nuanced. Article 2(h) is the only derogation ground that operates sequentially rather than independently — and understanding that distinction determines whether a brand’s donation programme actually resolves its compliance obligation.
Why Donation Is Sequential
Article 2(h) opens with a condition that no other derogation ground carries: it applies “only where none of the circumstances referred to in points (a) to (g) are applicable.”
This means an economic operator cannot use the donation pathway as a first-line disposal route. Before invoking ground (h), the operator must confirm that the product is not dangerous (a), not legally non-compliant (b), does not infringe IP rights (c) or (d), is not unsuitable for reuse due to branding issues (e), is not damaged beyond cost-effective repair (f), and does not suffer from original manufacturing defects (g).
Only when none of these independent grounds apply — when the product is compliant, undamaged, and fit for purpose but simply unsold — does the donation pathway become available.
The Procedural Requirements
When ground (h) does apply, the regulation imposes specific procedural requirements before destruction is permitted. The economic operator must offer the product for donation through one of two routes:
Route 1: Direct outreach
Offer the product directly to at least three suitable social economy entities located within the European Union. The entities must, by statute or habitual practice, accept donations of the relevant consumer product type.
Route 2: Public listing
List the product on an easily accessible page of the economic operator’s website for a minimum period of eight weeks.
If the product is not accepted for donation through either route, the operator may proceed to destruction with the documentation specified in Article 3(g) — evidence of the offer for donation.
What This Means for Brands That Donate
A brand with an established donation programme — partnerships with UNHCR, Red Cross, Salvation Army, or other recipients — is not disadvantaged by this framework. Donation is not destruction under the regulation. Products successfully donated do not require a derogation at all, because donation is the opposite of destruction.
The compliance question arises for the residual volume: stock that donation partners cannot or will not absorb. Every donation programme has capacity limits. Seasonal spikes, category mismatches, condition thresholds, and logistical constraints mean that a percentage of offered stock will not find a donation recipient.
For that residual volume, the brand’s compliance pathway depends on why the stock remains:
If the stock has condition issues
Damaged, soiled, or deteriorated products route to ground (f) — the cost-effectiveness test — regardless of whether donation was attempted. The donation pathway is irrelevant because an independent ground applies.
If the stock is compliant, undamaged, and simply unwanted
This is where ground (h) applies. The brand must demonstrate the donation offer was made through the procedural routes above, document the non-acceptance, and only then may proceed to destruction.
The Interaction with Article 24 Disclosure
Article 24 of the ESPR requires all economic operators to disclose annually the number and weight of unsold consumer products they discard, the reasons for discarding, and the measures taken to prevent destruction. Products routed through donation are captured in this disclosure as prevention measures — they demonstrate the operator is actively avoiding destruction.
The disclosure requirement applies regardless of which derogation ground is used. A brand that donates 80% of its unsold stock and destroys 20% under documented derogations still reports both volumes. The disclosure is not a pass/fail gate — it is a transparency mechanism.
Practical Implications
For brands with strong donation programmes, the Invalusys compliance framework does not replace or compete with those programmes. It completes the compliance architecture around them. Donation handles the volume it can absorb. The derogation framework handles the residual. And Article 24 disclosure captures both streams in a single auditable record.
The operational challenge is ensuring that the screening process — which determines whether stock routes to donation, to an independent derogation ground, or to the sequential donation pathway — is documented at item or batch level with the evidence Article 3 requires.