Overview
Following the entry into force of the new Recycled Plastic Regulation in 2022, there were fewer structural changes to the food packaging regulatory framework in 2023. Nevertheless, the evolution of food packaging regulation continued at pace, with some significant developments in the drive for more sustainable packaging solutions under the Green Deal and the new circular economy action plan. Notably, in December 2023, Commission Implementing Decision (EU) 2023/2683 entered into force providing the methodology for the calculation of recycled plastic content targets in single-use plastic beverage bottles under the Single-Use Plastics Directive.
Progress towards the new (EU) Packaging and Packaging Waste Regulation (PPWR) continues, and is expected to be agreed in 2024. It is anticipated that the PPWR will include significant packaging reduction targets, sustainability requirements, as well as a range of other measures across the entire packaging lifecycle.
In the UK, England, Scotland, Wales and Northern Ireland each has individual responsibility for the regulation of single-use plastic. While there appeared to be a common direction of travel of the national governments on this topic in 2023, implementation has generally been asymmetrical and the rules currently vary. Scotland was first to introduce broad restrictions on single-use plastics, with England and Wales adopting similar measures in 2023.
The latest single-use plastics bans in the UK were an important step forward to eliminate all avoidable plastic waste by 2042 (as required under the 25 Year Environment Plan), but the new rules were somewhat overshadowed by the delays to the new UK Extended Producer Responsibility (EPR) framework for packaging. It was announced that the introduction of new waste management fees, which will allow UK authorities to recover costs for the collection and management of packaging waste, by charging liable packaging producers under a new single point of compliance, will now be delayed by a year until October 1, 2025.
Following the introduction of the new Recycled Plastic Regulation, the Commission intends to further modernize the regulation of food contact materials (FCM), including the FCM framework regulation, Regulation 1935/2004 (the Framework Regulation). The Commission’s stated view is that the FCM framework has several fundamental issues that need to be addressed. Indeed, an evaluation of the current FCM rules highlighted the following challenges:
- Safety insufficiently defined at EU level for most FCMs;
- Lack of capacity for risk assessment and management of all FCM substances and parallelly lack of priority on most hazardous substances;
- Lack of transparency on the safety of migrating substances;
- Insufficient capacity of public authorities to comprehensively enforce compliance and safety;
- Ever increasing complexity of specific detailed rules;
- Environmental challenges call for more sustainable production and use. However, rules do not encourage development of safer and more sustainable alternatives;
- New products entering the market that challenge current categories.
To (partially) answer these challenges, the current state of the revision inter alia aspires to bring the following noteworthy changes, categorised in six distinct pillars.
Pillar A: a rebalance of the focus onto the safety of the final material. This would be achieved first through a strengthening of Article 3 of the Framework Regulation with a view to ensuring that FCMs should be inert and that no migration should be allowed unless the migrating substances are known, have been risk assessed and their exposure is below resulting limit. Second, through a high level of transparency, where all substances that may migrate would be communicated to the producer of the final FCM. The idea behind this first pillar would be to drive innovation towards the design of inherently safer and more sustainable materials.
Pillar B: a change in the prioritisation of substances. In essence, substances would no longer be prioritised for risk assessment and risk management purely based on the need to authorise their use in the manufacture of FCMs. Rather, ‘migratables’ should be assessed for all FCMs according to a number of defined criteria.
Pillar C: a drive towards (more) sustainable FCMs. The aim under this pillar would be to focus on rules that would facilitate sustainability in the production, the use and the disposal of FCMs, by ensuring that fewer hazardous chemicals are contained in FCMs and by prioritising a more sustainable use of FCMs.
Pillar D: improving the quality and accessibility of supply chain information. This would be achieved through the revision of the approach to information system, to ensure that the objectives of Pillars A and B can be met.
Pillar E: the creation of a system for verifying compliance and undertaking official controls. The aim of this pillar would be to evaluate (i) aspects that need enforcement; (ii) the role of Competent Authorities; and (iii) the use of Notified Bodies and Designated Bodies.
Pillar F: on analytical methods. The aim would be a shift from the present focus on the enforcement of migration limits under the Official Controls Regulation (EU) 2017/625 towards a lower importance of migration testing.
However, the major changes currently envisaged – which are only aspirations that are still subject to change – are unlikely to reach the statute book in 2024. The Commission expects to finalise the assessment of the feasibility and the impact of the various proposed policy options in 2024 (including discussions in experts and stakeholder groups), with a view to conclude on its preferred policy option and to work towards a legislative proposal as of 2025.
In the UK, a consultation was undertaken in 2023 to establish whether the objectives of the FCM implementation and enforcement regulations were fit for purpose. It was concluded that the regulations continue to meet their objective of safeguarding consumers from the risk of chemicals that might otherwise have migrated into food at levels that affect human health or diminish its quality. Given the scale of the changes proposed in the EU to FCM regulation, it will remain important to monitor developments in both the EU and UK separately to ensure compliance with the diverging rules.
