French BPA ban referred to Constitutional Court

By Joseph James Whitworth contact

- Last updated on GMT

PlasticsEurope filed the case at the Conseil d´État in February
PlasticsEurope filed the case at the Conseil d´État in February

Related tags: Food contact, European union, European food safety authority

PlasticsEurope has welcomed the Conseil d´État’s decision to refer the case around the French law suspending the use of bisphenol A (BPA) in food contact materials to the Constitutional Court.

The Conseil d´État accepted the request last week for priority ruling​ (Question Prioritaire de Constitutionnalité (QPC)) by the European Association of Plastics Manufacturers.  

PlasticsEurope filed a case at the Conseil d´État in February requesting annulment of the clarification note of the French authority DGCCRF (Direction générale de la concurrence, de la consommation et de la répression des fraudes) (“Circulaire” on 8 December 2014, on the law as of 1 January 2015), related to the law of December 2012 banning BPA in food contact applications.

France introduced legislation on 1 January 2015 suspending BPA-based materials for packaging products intended to come into direct contact with food.

Possible lift of ban?

The trade organisation questions the laws compliance with French Constitution regarding free trade, its proportionality, and the coherence of the law. The QPC is part of this process.

If the Constitutional Court abandons article 1 of the Law of 24 December 2012, there could be a short-term lifting of the suspension. A decision is expected mid-September.

Michel Loubry, head of PlasticsEurope, Western Europe, said the law was initiated by French Parliamentarians based on a ‘very broad application of the precautionary principle’.

“But today, health authorities in Europe and around the world repeatedly confirm that the use of BPA-based products in food contact presents no risk to consumers,” ​he said.

“It is therefore time to end the isolation of France in the European market, and restore the confidence of all partners in high quality and safely packaged food products, and in the European safety system, which has one of the most demanding regulatory requirements in the world."

EFSA decision and EU-PILOT

The European Food Safety Authority (EFSA) said BPA poses no health risk to consumers of any age group in January.

These conclusions are based on a broader scientific database than which ANSES based its opinion of March 2013: EFSA takes into account additional studies after 2012, as well as ones cited in the public consultation (until March 2014), said PlasticsEurope.

With the scientific opinion of EFSA confirming no risk from BPA exposure for consumers it becomes clear that the French law of 2012, passed in a context of strong political and media activity, is a disproportionate measure, it added.

It is “logical” that France should remove its precautionary measures taken at a time when it was awaiting further scientific advice after findings of the EFSA review, said the group.

“The fact that any realistic exposure to BPA is well below even the conservative safety threshold established by EFSA shows that blanket restrictions being applied at national level, in particular in France, are unjustified and should be withdrawn​,” said Jasmin Bird of the PC/BPA-group.

“The EFSA conclusion on BPA should be used as the basis for consistent and harmonised European food safety regulation, and should be respected by all EU Member States.”

PlasticsEurope also filed a formal complaint at the European Commission in March 2013. It is being addressed under the EU-PILOT platform.

The pre-litigation phase was opened in September 2014 and it is up to the Commission to start a formal infringement procedure against France – which could result in serious financial penalties.

“The French law unduly limits the free movement of goods in the European Union and weakens companies operating in France and beyond. The law is in contradiction with the valid European legislation on food contact materials​,” said the group.

“Harmonized European regulations prevent arbitrariness and confusion, which can erode consumer confidence. In this context, the French law not only unnecessarily damages one product on the market, but also has far reaching consequences for the functioning of the European institutions and for consumer trust.”

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