Foodlaw-Reading Dr David Jukes, The University of Reading, UK
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Food Law News - UK - 2020

CONTACT MATERIALS - FSA Consultation: The Proposed Materials and Articles in Contact with Food (England) (Amendment) Regulations 2020

The following is the main text from the consultation document. The consultation closes on 18 November 2020. For details, see the FSA page: https://www.food.gov.uk/news-alerts/consultations/the-proposed-materials-and-articles-in-contact-with-food-england-amendment-regulations-2020.

Details of consultation

1. A consultation was made from 9 April 2018 to 4 June 2018 on the proposed Materials and Articles in Contact with Food (England) (Amendment) Regulations 2018. Full details are provided at the link below, including the summary of responses: https://www.food.gov.uk/sites/default/files/media/document/materialsandarticlesincontactwithfood_0.pdf

2. This originally looked to provide for the execution and enforcement, in England, of:

• Commission Regulation (EC) No. 282/2008 on recycled plastic materials intended to come into contact with food (“the Recycling Regulation”)
• Commission Regulation (EU) No. 2016/1416 (“the revised Plastics Regulation”) amending Commission Regulation (EU) No. 10/2011 (“the Plastics Regulation”) on plastic materials and articles intended to come into contact with food
• Commission Regulation (EU) No. 2018/213 on the use of bisphenol A in varnishes and coatings intended to come into contact with food (“the BPA Regulation”)

3. Following discussions, we are now proposing to introduce changes in relation to the criminal offences proposed in the Regulations. These are as follows:

• To remove the maximum penalty of a custodial sentence from nine specific offences within the current Regulations, retaining the maximum penalty on conviction of indictment or on summary conviction to a fine. The proposed change recognises that fines for such offences are now unlimited and therefore represent a dissuasive deterrent to certain noncompliance. The nine specifc offences are as follows:
  • No person may place on the market a ceramic article that does not comply with the requirements of paragraph (1 – limits for cadmium and lead) as read with paragraph (2 – appropriate documentation to show it does not contain lead and cadmium).
  • No person may place on the market any regenerated cellulose film which has been manufactured in contravention of the requirements of paragraphs (1) to (4), or which fails to comply with paragraphs (5), (6) or (7).
  • No person may – (a) place on the market; or (b) use in the course of a business in connection with the storage, preparation, packaging, selling or service of food (Requirements for vinyl chloride).
  • Any person who, in purported compliance with any requirement under paragraph (4), knowingly or recklessly supplies information that is false or misleading in any material particular is guilty of an offence.
  • Any person who contravenes paragraph (1) – not complying with the general requirements or special requirements for active and intelligent materials or (2) or Article 11(4) or (5) (Community authorisation) or 17(2) (traceability) is guilty of an offence (relates to Regulation 1935/2004 requirements).
  • Any person who fails to comply with the requirements of Article 4 (conformity with  good manufacturing practice) of Regulation 2023/2006 is guilty of an offence.
  • Subject to the transitional provisions contained in Article 14 (entry into force and application) of Regulation 450/2009, any person who places on the market any active and intelligent material or article which does not comply with the requirements of Article 4 of that Regulation is guilty of an offence(a).
  • Subject to the transitional arrangements set out in Article 22(4) and (5) and Article 23(a), any person who places on the market a plastic material or article that fails to comply with a requirement of Regulation 10/2011 specified in column 1 of the Schedule is guilty of an offence.
  • Any person who contravenes paragraph (2) or (3) is guilty of an offence (Relates to Regulation 1895/2005 requirements).
• As detailed above, the original 2018 consultation also outlined the intention to provide for the execution and enforcement of Commission Regulation (EC) No. 282/2008 on recycled plastic materials intended to come into contact with food (“the Recycling Regulation”). The specific offence related to this was:
  • Subject to the transitional provisions contained in Article 14, any person who places on the market a material or article that fails to comply with Article 3(1) (requirements for plastic materials and articles) is guilty of an offence.
• In line with the approach taken for the nine offences specified above, we now also propose to only introduce a maximum penalty on conviction of indictment or on summary conviction to a fine for this new offence. These latest proposals align with the UK Government’s objectives on reducing reliance on criminal sanctions. We believe that the penalty of a fine upon conviction for this offence is more proportionate and consistent, considering the similar nature of the individual potential offences, and represents a useful deterrent.
• The draft 2018 Regulations on which we consulted reflected a right of appeal via the general chamber of the first-tier tribunal. However, following consideration of the collated evidence we believe that appeal to the Magistrates’ Court against imposition of a compliance notice or stop notice, is preferable as it represents better management of public money.

4. The proposed enforcement measures for Commission Regulation (EU) No. 2018/213 on the use of bisphenol A in varnishes and coatings intended to come into contact with food (“the BPA Regulation”) remains unchanged from the original amendment within the 2018 consultation. This reflects the potential significance of the health risk presented for vulnerable consumer groups (i.e. infants and young children) by which the EU Regulation seeks to protect under the precautionary principle. This means that no migration of bisphenol A shall be permitted from varnishes or coatings applied to materials and articles specifically intended to come into contact with infant formula, follow-on formula, processed cereal-based food, baby food, food for special medical purposes developed to satisfy the nutritional requirements of infants and young children or milk-based drinks and similar products specifically intended for young children. We therefore believe that this should not be within the same category as the offences listed earlier within this consultation. This will mean that we are committed to introducing a term of imprisonment as a maximum penalty for offences related to the main requirements of the BPA Regulation.

Impacts

5. We consider that the level of impact as a result of the proposed additional changes to the Regulation will be extremely low. The original impact assessment essentially remains unchanged and can be referred to within the 2018 consultation documents provided above.

6. We welcome your comments on:

• The proposed 2020 changes, as outlined above, to the originally proposed Materials and Articles in Contact with Food (England) (Amendment) Regulations 2018 (“the proposed Regulations”), which will provide enforcement authorities with the necessary powers, for the execution and enforcement of the Recycling Regulation, the revised Plastics Regulation and BPA Regulation.
• The FSA assessment that the impact of this proposed change will be extremely low.

For the news item on this site relating to the original consultation, see: 9 April 2018 CONTACT MATERIALS - FSA Consultation: Proposed The Materials and Articles in Contact with Food (England) (Amendment) Regulations 2018