In our contribution to the October 2010 edition of the Food Law Digest, we explained that the use of Bisphenol A (or “BPA”) in food containers was a controversial issue. Since the publication of that Digest, some developments have occurred, which we summarise hereafter.
As a reminder, the origin of the controversy is to be found in scientific uncertainties around the actual (neuro) toxicity of small amounts of BPA that can migrate from the packaging into foodstuffs or beverages contained in the can and therefore be ingested.
The European Food Safety Authority (“EFSA”) was requested by the European Commission to publish an opinion on this issue, which it did on 30 September 2010. That opinion confirmed the previous opinions issued by the EFSA in 2006 and 2008, and did not modify the Tolerable Daily Intake (TDI) of BPA, set at 50 µg per kilogram body weight. However, the opinion noted the existence of scientific studies which still point to uncertainties as to some undesirable effects of BPA on human health.
Further to this report, members of the Federal Belgian (resigning) Government asked the Federal Superior Health Council (hereafter, “FSHC”), a consultative body, to publish as a matter of urgency an opinion with respect to the use of BPA for food contact plastics, and in particular in materials intended to be in contact with food intended for infants. The FSHC issued its recommendations on 3 November 2010, which are based on a review of opinions given by several national and international health authorities. The FSHC came to the conclusion that, in accordance with the precautionary principle, the exposure of young children to BPA should be limited as much as possible. It recommended limiting drastically the presence of BPA in materials intended to be in contact with food intended for children between 0 and 3 years. On the basis of that opinion, the Federal Minister of Health issued a press release on 10 November 2010, in which she stated that the exposure to BPA should as much as possible be avoided. This recommendation is however not binding upon the industry.
By contrast, the European Commission - which also decided to take measures as a consequence to the opinion of the EFSA- adopted a binding Regulation on 14 January 2011 forbidding as from 1 May 2011 the use of BPA as additive or polymer production aid in general (Commission Regulation (EU) No 10/2011 on plastic materials and articles intended to come into contact with food).
As a consequence to that evolution, producers of plastic materials and articles intended to come into contact with food will have to find alternatives to BPA in order to comply with the new European Regulation.