The Rapporteur’s proposals for amendment contain several highly questionable requests. This concerns in first instance the requested possibility for Member States to adopt additional sustainability measures going beyond the harmonized measures in the Regulation. In addition, the Rapporteur proposes that providers of online platforms have to comply with the main extended producer responsibility requirement, unless they can prove that the primarily responsible producers of the relevant packaging are actually complying with these requirements.
The focus in this article is, however, on the proposed ban of PFAS in paper and cardboard food packaging:
With this proposal the Rapporteur aims at a PFAS ban beyond the restriction proposal on PFAS under the REACH Regulation. The proposed amendment does not provide a specific definition of substances that should be considered as PFAS and refers merely to the OECD definition of PFAS as established in 2018. Insofar, the proposal ignores the fact that PFAS were re-defined by the OECD in 2021. Moreover, even the restriction proposal under REACH contains deviations from the OECD definition which are not reflected in the proposal for a ban of PFAS in a potential regulation on packaging and packaging waste. In addition, no threshold limits shall be considered contrary to the restriction proposal under REACH. This is all the more remarkable, as no details regarding potential analytical methods to determine PFAS in paper and cardboard food packaging are provided. Irrespective the aforementioned inconsistencies, the Rapporteur’s proposals seem to ignore the fact that the proposal for a PFAS restriction under REACH has already assessed PFAS in paper and cardboard food packaging and suggests no exemption or derogation in this regard. Already against this background, the proposal seems to be not reasonable as the approach to establish a harmonised restriction of PFAS would be jeopardized and there seems to be no justification for the proposed measure due to the pending restriction procedure according to the REACH Regulation.
This notwithstanding, both intended measures, i.e. the restriction proposal under REACH as well as the aforementioned proposal regarding a PFAS ban in an upcoming regulation on packaging and packaging waste, are flawed by the fact that hazard properties cannot be established for all substances falling within the respective scope. While the restriction proposal according to Article 68(1) REACH refers to the fact that properties of PFAS differ and vary among the PFAS and it is not demonstrated or claimed that any and all PFAS within the scope of the proposal have additional hazard properties beyond their persistence at all, the proposal on a ban of PFAS in paper and cardboard food packaging does not even indicate the scientific basis or any limitations of available data.
Irrespective the limited scope of the proposed restriction of PFAS aiming only at paper and cardboard food packaging, market actors should take note of the proposal of the Committee on the Environment, Public Health and Food Safety. The public consultation procedure on the restriction proposal according to Article 68(1) REACH does not excluded additional, deviating and/or more stringent measures in connection with other legislative proceedings. Bearing in mind that a broad variety of product related acts are currently under revision at EU level, all respective legislative proceedings needs to be carefully assessed. It should be avoided that further bans or restrictions are implemented independent of the pending restriction process under REACH and prior to the assessment of the Committee for Risk Assessment (RAC) and the Committee for Socio-Economic Analysis (SEAC).
The recent developments regarding a potential regulation on packaging and packaging waste emphasize that industry should not underestimate the risk of parallel measures to ban PFAS. The same holds true for substances or groups of substances under scrutiny like endocrine disruptors. The fact that specific proceedings established under chemicals legislation are not yet initiated or completed does not exclude restrictions or bans by other means.
Do you have any questions about this news, or would you like to discuss it with the author? Please contact: Martin Ahlhaus
