Materials and objects in contact with foodstuffs

The DGCCRF (French Fraud Control Agency) has just published an update of the general considerations section of its information note concerning materials and objects intended to come into contact with foodstuffs (N.I. 2014-108)*.  The title "Information note" may seem to underestimate the practical importance of this text and the complete set of material data sheets that accompany it, because it is not only informative, setting out the regulatory requirements in force along with contextual information, but it also sets out the rules for situations not yet covered by the regulations. This is the case in particular for all glass packaging.
Consequently, although this is not a regulatory text as such, it is effectively a legal reference, having moreover been produced in consultation with all the stakeholders.

The fact is that although Regulation EC 1935/2004 provides the bases by stipulating more specifically in article 3 that the materials in contact must "not transfer their constituents to food in quantities which could […] endanger human health [...]", it leaves defining the quantitative criteria of acceptability to specific regulatory texts for 17 different identified groups of objects and materials. Only six such specific texts exist at the European level. Even though one would be justified in thinking that the lack of regulations reflects the perception of a low level of risk by the public authorities, it is nonetheless true that quantitative criteria are necessary to enable an operator to prove objectively that the materials and objects it produces or uses comply with Regulation EC 1935/2004. Undoubtedly partly in recognition of the fact that the European legislative machine can be cumbersome, the Regulation accepts that the specific national regulatory texts can apply, subject to compliance with the principle of mutual recognition resulting from the "Cassis de Dijon" order of the European Court of Justice** - an item that complies with the regulations of one member country shall be considered compliant in all the other member countries. Thus the few texts that exist in the French regulations for materials and objects in contact with foodstuffs also serve to define compliance with the EC Regulations for the materials and objects concerned and are of course taken up in the DGCCRF Information Note.

The fact of having recognised quantitative criteria for determining food contact conformity is all the more necessary given consumers' growing sensitivity to issues of exposure to all types of health risks. The notion of "endangering human health" also takes on another dimension with the concerns about the long-term effects of exposure to very low doses and the possibility of combinations of substances that would increase their effects. The case of bisphenol-A (BPA) is of course symptomatic of this change, with concerns about subtle effects potentially affecting the reproductive capacity of humans, faced with scientific uncertainties due to the very subtlety subtle nature of the signs that would materialise confirm this risk. Therefore the "precautionary principle" comes into play with an action led by France based on a clause of Regulation EC 1935/2004 which enables Member States to restrict if they consider they are acting in the general interest. The act voted in France in December 2012 prohibiting BPA in packaging should come into effect on 1 January 2015. In this case, we are outside the scope of application of the "Cassis de Dijon" order, and articles manufactured in the other member countries, for export to France, should comply with this prohibition. We are of course waiting for the EU to clarify its position based on the recommendations from the EU competent authority, the European Food Safety Authority (EFSA), scheduled for December 2014. 

Whatever the outcome of the ongoing scientific analysis and the probable compromise proposed by the EU at the beginning of 2015 in the face of France's legislative initiative, it is certain that BPA now has a poor image that can only get worse. "BPA-free" is becoming a commercial argument before the scientists have even been able to rigorously determine a level of exposure that would not "endanger human health" and which would or would not justify its prohibition in food contact materials. 
Many products have already entered the "undesirable" category in the collective opinion, independently of the regulations. Packaging component producers have long been receiving highly diverse attestation requests - GMO-free, phthalate-free, allergen-free, bovine product-free (cf. mad-cow disease), free of substances from Japan (cf. Fukushima). They also receive requests concerning the transport packaging in contact with the food contact packaging. Although some demands may seem strange for a given type of packaging, it is generally wiser to make due verifications before signing a legally binding written document attestation that could leave the company liable to prosecution.

It is as much to facilitate the understanding of the situation between the EU and national regulations in Europe and those of the major non-EU countries, as to answer the requests for diverse certificates concerning food contact, that Cetie is currently setting up a specific working group on certificates of conformity which reports to the plenary QSE (Quality, Safety, Environment) group.
For further information on this working group and Cetie's activities: contact@cetie.org.