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21st Nov 2018

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How France escaped EU legal action over chemical ban

  • Plastic containers sold in France cannot be made with the bisphenol A chemical (Photo: Caroline Attwood)

The European Commission considered in 2015 taking legal action against France over the country's ban of a toxic chemical - but was unable to find agreement internally, an internal document released to EUobserver revealed.

The paper was made public after an access to documents request by this website, and concerns the French decision to ban the use of bisphenol A in food packaging, containers and utensils, as of 1 January 2015.

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  • A briefing paper for a member of EU commissioner Elzbieta Bienkowska's cabinet was released after an access to documents request (Photo: Peter Teffer)

France did not want to risk the food of its citizens coming in contact with the chemical substance.

"France is the sole country not only in the EU, but in the world, having adopted such a measure," the document said.

The document is a briefing paper for Agnieszka Drzewoska, cabinet member of industry commissioner Elzbieta Bienkowska, written to prepare her for a 17 April 2015 meeting with PlasticsEurope, a Brussels-based lobby group for the plastics industry which had complained about the new French law.

It highlights the difference of opinions that can exist within the European Commission – and the sometimes conflicting focus of its departments, called directorates-general.

"In the light of the current state of EU law, the French measure is fully disproportionate and creates considerable legal uncertainty, both within the internal market and as regards the EU commercial relations with third countries," the paper said.

"The [French] legislation at issue goes beyond what is necessary to attain the objective pursued," it went on, noting that the French law caused "a great degree of legal uncertainty".

The paper was written by the directorate-general in charge of the functioning of the internal market and industry.

It said that commission civil servants proposed opening a case against France through the so-called infringement procedure, which is a series of escalating letters and warnings that can end up in the Court of Justice of the EU.

While the legal services of the commission supported a draft 'letter of formal notice', to be sent to France, the commission's directorate-general in charge of public health provided a negative opinion, and the case was put on hold.

Bisphenol A is a substance used often by the plastics industry to make everyday products. Prolonged exposure however, can lead to severe health problems.

Last year, PlasticsEurope went to the Court of Justice to challenge a decision by the European Chemicals Agency to mark bisphenol A as a substance of very high concern.

When Bienkowska's cabinet member met with the plastics lobbyists in April 2015, a report by the European Food Safety Authority had just come out, saying that there was no consumer health risk from bisphenol A exposure.

However, the EU had already banned the use of bisphenol A in the production of baby bottles in 2011 as a precautionary measure.

A new ban on using it in thermal receipts – to protect cashiers – will come into force in 2020.

Meanwhile in France, the law was adjusted later in 2015, allowing French companies to produce food packaging, containers and utensils with bisphenol A if it is meant for export. Placing those products on the French market remained banned.

And last February, the commission decided – backed by EU member states – to tighten restrictions on the use of bisphenol A in "varnishes and coatings intended to come into contact with food".

Harmonisation

The United States' foreign agricultural service noted in a February report that bisphenol A restrictions varied across the EU.

"Differences between these national laws affect the proper functioning of the internal market for food contact materials and pose challenges to third-country exporters," it said.

However, it noted that even though the commission's February decision meant that the EU rules on using bisphenol A became stricter, it also meant an improvement of harmonisation.

The commission recently told MEPs that the European Food Safety Authority will begin a re-evaluation of the substance in spring 2018, a process expected to take two years.

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