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The secretive (and ineffective) world of EU rules controlling chemicals used in food packaging

CHEM Trust has been highlighting the severe deficiencies in the EU’s regulation of chemicals in food contact materials, where the laws have big gaps (e.g. paper and card food packaging), and allow continued use of hazardous chemicals. However, we are not just concerned with the deficiencies in the regulations, but also with the secrecy with which the European Commission works in this area.

EU regulations on chemicals in food contact materials are agreed by the European Commission’s Health department working with a working group of experts from EU Governments, the “Working Group on food contact materials of the toxicological safety section of the Standing Committee on Plants, Animals, Food and Feed”. Observers from stakeholders (whether industry or civil society) are not allowed to access these meetings.

The Commission has, however, set up a ‘Technical Expert Group’ on food contact materials, but this is only open to  “European associations representing food contact material manufacturers and/or their supply chain“, as is made clear on the Commission’s register of Commission Expert Groups:

Environmental and consumer groups are not allowed any access to this – or any other – formal stakeholder process.

Minutes and some documents of both the Member State working group and the ‘Technical Expert Group’ are uploaded to a Commission web page. There is no indication on this page, however, of when the Technical Expert Group is next due to meet, or any information on what is the nature of the “Consultations can also be done in a written form” which are mentioned on the page. The page does clarify that “A major objective [of the Technical Expert Group] is to help reducing burden to business operators.”

On 6th November the European Commission’s ‘Director for Food and Feed Safety & Innovation’, Sabine Jülicher, who is responsible for this policy area, appeared in front of the European Parliament’s Committee on the Environment, Public Health and Food Safety. She was asked specifically regarding the industry-only Technical Expert Group, and said:

“There is a bit of a history, including, you know, whether NGOs at the time were interested in working in that working group. What I can say and in particular if even when there are new developments we will also reach out to NGOs once again and involve them in our considerations. Industry is obviously and this – I have to say very clearly – they are consulted, not at all stages, but it will be consulted because of the technical complexity.”

Yet the current, industry-only, stakeholder group was only created in 2015 and the Food Packaging Forum, an expert NGO on chemicals in food packaging, was allowed to participate in (and report on) the previous stakeholder group until May 2015. It was then barred from the group as the membership criteria were changed to “experts from industry trade associations only“.

Health and Environment Alliance has made two attempts to use the European Commission’s access to documents process to find out who sits on the Member State working group – the first time they were told that the list did not exist, the second time (when they asked who attended specific meetings) they were given a list with all the names blacked out.

A more open approach from the EU’s main chemicals regulation

This secretive and industry-focussed process is very different to the openness of the EU’s main chemicals regulation process REACH, where the European Chemicals Agency allows substantial involvement of stakeholders in almost all REACH processes:

All organisations and individuals interested in or affected by the chemicals regulations are our stakeholders and are very welcome to participate in our work.

We are committed to openness and transparency and a regular two-way dialogue with our stakeholders is an important part of that. Therefore, we involve stakeholders in many activities and in our decision-making.

CHEM Trust is a registered stakeholder at the European Chemical Agency, which enables us to participate in a wide range of processes, for example the Endocrine Disruption Expert Group. Many other social and environmental – and industry – stakeholders participate in ECHA processes, even in some cases handling confidential information. Why should policies surrounding chemical use in food contact application be so much more secretive and industry-focussed?

What next?

CHEM Trust, HEAL and Client Earth met the Director General of the European Commission’s DG Health on 11th October to discuss our concerns regarding the secrecy of these processes. We sent a letter a few days later to outline our concerns (see annex below)  – at the time of writing we had received no response.

Dr Michael Warhurst, Executive Director of CHEM Trust, summarised CHEM Trust’s concerns:

“It is extraordinary that the section of the European Commission responsible for keeping people safe from chemicals in food contact materials such as packaging should be organising secretive industry-only discussions of future policies. 

It is well known that enabling wider participation in policy processes can give better outcomes – indeed, it is possible that the secrecy that surrounds policymaking in this area is one of the reasons why the EU’s laws on chemicals in food contact materials are so poor.

The EU’s laws on chemicals in food packaging have been strongly criticised by MEPs, the Commission’s own Joint Research Centre and by civil society organisations. It is time that the European Commission opened up their work in this area to proper debate and examination, rather than private discussions with the food industry”

Annex: Letter to Xavier Prats Monné, Director General of European Commission Health department, 16th October 2017

Thank you very much for taking the time to meet with our three organisations – HEAL, CHEM Trust and ClientEarth – last week and for the constructive exchange of views that we had. With this email, we would like to highlight again some of the important topics that we covered and on which we would welcome follow-up actions and updates in the months to come.

  • Openness of the regulatory process about food contact materials (FCM)

As discussed during the meeting, we are concerned at the current level of openness on the regulatory process about FCM. In particular, we regret that public interest organisations are kept outside of both the working group on FCM and the expert stakeholder group, and that detailed information about what the group is discussing and who is sitting there is currently difficult to find. We hope that you can look into this, keeping in mind that public interest organisations can bring in additional technical knowledge as well as broader perspectives from wider stakeholders, including producers of safer substitutes and scientists. We welcome the possibility to contribute to public consultations, but considering our limited resources, early involvement is an indispensable pre-requirement for organisations like ours as well as other civil society organisations to meaningfully participate to the decision-making process. The evidence from REACH is that an open process with substantial opportunity for stakeholder participation improves the quality of decisions and reduces divisive disputes.

  • Upcoming consultations on review of existing regulation and initiative on printed FCM

We welcome DG Santé’s announcements of the review processes for the existing regulation and a new legislative initiative on printed food contact materials and will be looking forward to opportunities to provide input. We are, however, concerned that other non-harmonised materials are not proposed to be included in this new initiative. In order to encourage our partners and networks of experts and scientists to get engaged, we would also welcome receiving clarifications about the exact timelines for both processes as early as possible. We also suggest that the use of a co-decision process for this new legislative initiative would enable a more open and participative process, as well as giving the Commission the maximum flexibility as to the content of the proposal.

  • Addressing endocrine disruptors in FCM independent of discussion on pesticides criteria

In the view of our organisations, the failure to address endocrine disrupting chemicals in the current FCM regulations is an important loophole that should be highlighted in the upcoming review and addressed as a priority item. In order to create synergies and make the most of the knowledge developed by EU institutions, in particular under REACH, the FCM regulations should ensure that EDCs and other chemicals that are identified as SVHCs in REACH are banned, except when there is no safer alternative or technology and the use of the substance in FCM satisfies an imperative public interest. Progress on endocrine disrupting chemicals found in FCM could be addressed as part of an integrated European strategy on endocrine disruptors, which should also include other areas suffering major gaps, such as toys or cosmetics.

For more details on this issue, see the following:

We remain available to provide you with further information and input as you see fit and we look forward to constructively working with you on this area in the future for major improvements in the interests of improved citizens’ protection.

Yours faithfully,

Natacha Cingotti, HEAL, Apolline Roger, ClientEarth, Michael Warhurst, CHEM Trust