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All stakeholders call for new EU laws on chemicals in food packaging, yet new Commission President proposes “one in one out” rule

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On Monday 9th September the European Commission held a major stakeholder meeting to discuss the EU’s laws regulating chemicals in food contact materials (FCM) such as packaging and pipes. The meeting discussed the initial findings from a review that consultants Ecorys are carrying out for the Commission.

One clear message that came out of the event, from all stakeholders, including industry, officials from EU Member States, environment and consumer groups, is that it is vital that the EU creates new laws to harmonise the rules on chemicals in FCMs such as paper, card, inks and coatings.

With a new Commission coming into power on 1st November, this is an important time to push for action on this neglected issue. However, yesterday’s statement from the new Commission president announcing a ‘one in one out’ approach to EU regulation is very worrying.

The problem

The stakeholder meeting discussed how the EU regulations chemicals in food contact materials, which covers products such as packaging, kitchen utensils, factory pipes and napkins. These products can be made from a wide range of materials – plastic, paper, metal (often with a coating), glass – and they may be printed on with inks or stuck together with adhesives.

Over five years ago on July 9th 2014, CHEM Trust first expressed concern about unsafe and poorly regulated food contact materials in a letter to then-Commissioner Borg. Since then we have been working to highlight  the gaps in EU laws on FCM, including the lack of harmonised EU-level laws covering the chemicals that can be used in materials such as paper, card, inks and glues. The EU does have a list of chemicals that are approved for use in plastic FCM, but we also see problems with these rules, for example a lack of action on endocrine disrupting chemicals.

There are particular issues with the lack of EU-level harmonised regulation of chemicals in paper and card materials, with recent testing by consumer groups finding worrying levels of harmful chemicals. Some companies are also moving away from plastics to less regulated materials, or materials that are actually plastics but are marketed as something else (e.g. ‘bamboo’ cups that are actually made of melamine plastic and may leach illegal levels of harmful chemicals).

CHEM Trust has welcomed the recent announcement of a Danish ban on persistent and polluting perfluorinated chemicals in food contact materials, but the need for an individual country to take such measures shows the weakness of the EU system.

The current evaluation

The outgoing Juncker Commission was very slow in addressing this issue,  only starting this evaluation of the existing laws at the end of their term. The evaluation kicked off a year ago, with another stakeholder workshop, where CHEM Trust joined with other NGOs to present our main concerns about the system. This was followed by a consultation, to which CHEM Trust responded.

The final report from the Consultants is expected to be published within the next few months, around the same time as the new von der Leyen Commission takes office.

This week’s workshop

Monday’s workshop included representatives from across the industries concerned, from plastics to paper to food companies, also officials from governments across Europe and health and environment civil society groups. The workshop discussed the draft conclusions from the consultants, and it was remarkable how much agreement there was on two key issues:

  • Harmonisation: At the moment, the chemicals in plastic food contact materials are regulated at EU level, while those in paper, ink etc are not. This means a patchwork of rules, with no specific regulation in many countries while others have substantial regulatory systems (e.g. paper in Germany, coatings in Belgium and the Netherlands, inks in Switzerland). Industry doesn’t like this as it means different rules in different countries, civil society doesn’t like this as it means uneven standards of protection, and government officials don’t like it as it creates more work for them.
  • Enforcement: It was widely acknowledged that the current laws are difficult to enforce, and there is not enough enforcement capacity in governments. Industry doesn’t like this as it helps ‘free riders’ , particularly products imported from outside the EU, while everyone is concerned about the lack of proper health protection if products are not being checked.

What’s the solution?

It is very clear that a harmonised, EU level system is needed. However, there are many issues with creating something that is workable and efficient. In particular, the current process to create a positive list of chemicals authorised in plastic packaging has taken many years & there are concerns that the same system for other materials would be unworkable.

CHEM Trust have held two workshops to discuss how this regulatory system could be better integrated with the EU’s main REACH chemicals regulation, as an important route to greater efficiency. The first workshop was in July 2016, the second in April 2019 (minutes to be published shortly). The minutes of these workshops are part of our evidence to the consultants.

Five key principles

CHEM Trust has also led the creation of 5 key principles for a better regulatory system which we believe should be the basis for any future legislation. We welcome support from other organisations for these principles; please e-mail to sidsel.dyekjaer@chemtrust.org if you are interested.

The new Commission

The new president of the European Commission, Ursula von der Leyen, yesterday announced her nominee to be the next Health Commissioner, Stella Kyriakides from Cyprus.

The ‘Mission Letter’ that von der Leyen has written for Kyriakides mentions the new Commission’s “zero-pollution ambition” and states that “You should help protect citizens from exposure to endocrine disruptors“, which is very promising. However, it does not specifically mention revising the laws on chemicals in food contact materials as a priority.

Kyriakides will be questioned by MEPs in the next few weeks, as the European Parliament must approve the proposed Commission. The previous European Parliament agreed a very critical report in October 2016, calling forthe Commission to forthwith draw up measures for the non-harmonised materials paper and board, metals and alloys, printing inks and adhesives”. We hope the new Parliament follows up this report, emphasising the need for action to Kyriakides and the rest of the
von der Leyen Commission.

The dangers of “one in one out”

However, von der Leyen’s speech announcing the nominees for the new Commission included a very worrying statement:

 “When the Commission creates new laws and regulations, it will apply the ‘One-in, one-out’ principle to cut red tape.”

This approach, which has been pioneered by the UK, only looks at the costs to business of regulation, not the benefits. Given that regulations always impose some sort of burden, this rule always acts as a major disincentive for regulation. The UK’s implementation of this rule has been described as a “threat to democracy” by the New Economics Foundation. It has also been argued that this regulatory approach is one of the reasons that UK building fire regulations were so ineffective that the Grenfell tower block fire (which killed 72 people) became a major disaster.

In one aspect the new Commission’s proposal goes a step further than the UK approach, with their “Working Methods” document stating:

“Every legislative proposal creating new burdens should relieve people and businesses of an equivalent existing burden at EU level in the same policy area”

The means that the ‘one in one out’ must be achieved in a single piece of legislation – suggesting that the new Commission will need to start fusing together legislation from different policy areas to create an ‘out’ and an ‘in’, which does not sound like ‘better regulation’! The UK system does not expect every piece of legislation that creates a ‘burden’ to also remove the same ‘burden’, as it allows the ‘out’ to be in other areas.

As the Commission itself stated in October 2017, when talking about targets to reduce regulatory burdens and ‘one in one out’:

“Regulatory costs should be reduced on the basis of evidence, not simple numerical targets

…. the withdrawal itself could result in 28 different, and potentially divergent, national approaches.”

It is unclear what is the Commission’s evidence base for this change of policy – there is also no sign of an impact assessment of the change, which seems to be against the spirit of the Commission’s Better Regulation policies.

 

Dr Michael Warhurst, Executive Director  of CHEM Trust, said:

“The EU’s rules on chemical in food contact materials are not fit for purpose – industry, NGOs and national officials have all made clear that new EU-level rules are needed urgently. The new Commission must prioritise the development of new regulations, ensuring that all stakeholders are involved in creating a more effective and protective system. 

CHEM Trust is, however, very concerned that the new Commission president, Ursula von der Leyen, has proposed that EU regulations are going to be subject to a new ‘one in one out’ system. This arbitrary approach, which has caused problems in the UK, focusses only on business costs and takes no account of health, environment or other benefits of legislation. It was also dismissed by the previous Commission – where is the evidence base for this change, and is there an impact assessment?

Von der Leyen is essentially saying ‘we are going to deal with all these problems, but first we must make sure that we can’t do it properly’. If the Commission wants to tackle climate change, pollution and biodiversity it must not adopt this approach”