Official controls on food sold over the Internet are still limited, according to a report from the European Commission

Controls of food sold online were limited and mainly focused on registered food business operators. Non-compliances were mostly related to labeling and health claim requirements. Online marketing of dangerous substances as food supplements was found in a few cases.

With internet sales of food increasing at EU level such controls will need to be enhanced due to the anticipated fast growth of e-commerce. Enforcement and cooperation with non-EU countries is the main constraint to effectively control food sold via the Internet.

The report is based on fact-finding missions to Denmark, France, Germany, Ireland, Portugal, Sweden, and the United Kingdom in 2017 by the Directorate-General for Health and Food Safety of the European Commission (DG Health and Food Safety).

Most of these countries did not have specific national legislation for this type of sale. Official controls cover food hygiene (temperature requirements, transport, and traceability) labeling, health, and nutritional claims.

Challenge to identify

Identifying non-registered food business operators with an online presence has proved challenging due to limited resources and operators able to easily and rapidly enter and exit the online marketplace without being aware that EU food safety regulatory requirements governing traditional businesses (i.e. hygiene standards and labeling) also apply to sales online.

The presence of online sellers who actively try to avoid official controls by changing their digital identity is an additional hurdle for authorities.

Authorities in the member states recognized the need to enhance controls for online sales of food and have taken steps to adapt traditional inspection and sampling activities to ensure food supplied online is safe and subject to an appropriate level of official controls. The approach taken varies since it has been adapted to existing authority structures and depends on the priority given by to the area.

Differing national rules

In two member states, national legislation gives official staff increased investigation powers which enable them to use assumed identities to control the sale of goods and the supply of services over the Internet. In another member state, authorities can access private dwellings in case of ongoing investigations when used as the physical address of the businesses to have a full picture of sellers’ on-site activities.

The official control Regulation (EU) No 2017/625 applicable by the end of 2019 provides the legal basis for authorities to shop online without revealing their identity and to use the products received as official samples. Currently, not all countries are permitted to use assumed identities.

Officials from countries visited have attended the EU-funded Better Training for Safer Food (BTSF) course on control of e-commerce of food and there is an expert working group on official controls of e-commerce of food set up by the Commission.

The Federal Office of Consumer Protection and Food Safety (BVL) in Germany and the European Commission are organizing an international conference on the eCommerce of food in Berlin from June 24 to 26, 2019. The event will be in English with translation into German.

Operation results

In 2017, the Commission organized the first EU coordinated control plan on food offered via the Internet. Authorities from 25 member states, Switzerland and Norway checked nearly 1,100 websites and found around 740 non-compliant offers, i.e. 425 offers of unauthorized novel foods and 315 of food supplements with medicinal claims. A second such action is being planned.

The system for registration of establishments does not ensure correct identification of all food businesses operating online, which impacts the ability of authorities to organize official controls. In most cases, registration forms do not explicitly take into account the online dimension and such information is not considered for the risk rating and determining the type or frequency of controls by local authorities.

Online controls are in most cases done in conjunction with physical ones. If operators sell exclusively on the Internet and have no physical food-related activities then controls are exclusively/largely on their websites.

Some foods, in particular supplements, are more intensely targeted, due to the importance attributed to their online sale and distribution. Surveys covering food supplement sale sites have recorded high numbers of non-compliances.

Enforcement issues

Depending on the risk identified, enforcement measures by authorities have included requirements for removing claims, revising product labeling, removing the product from the market, recalling it from consumers, and seizing items.

The option for enforcement abroad (fines on operators based in other member states or in non-EU countries) had not been used by any of the authorities in the nations visited regarding food.

Difficulties have been highlighted in using online purchases for complex sampling protocols such as aflatoxin (e.g. ensuring the representatively of the batch). In some cases, authorities are not able to take samples of food products identified during online investigations on the spot since they are no longer available by the time they visit the premises.

“Proactive searches to identify unregistered food business operators are up to date very limited and some member states do not have the legal basis to carry certain activities or to use tools necessary to control this type of sales, such as mystery shopping. The enforcement of EU food chain legislation on online sales is cumbersome especially concerning entities based in non-EU countries with which there is no established cooperation,” according to the report.

Joe Whitworth
https://www.foodsafetynews.com/author/jwhitworth/

https://www.foodsafetynews.com/2019/03/eu-report-finds-limited-controls-on-food-sold-online/

"UK: ASA snapshot – ASA decisions published in February 2019 (Food and Drink)"

Food features in a number of the rulings underlining the importance of not overstating any claims as to environmental benefits, as well as emphasising the importance of careful compliance with the EU Nutrition and Health Claims Regulations. Targeting issues proved to be key in two adverts for Rizla cigarette rolling papers, one successfully, and one not. In a not upheld decision in relation to an advert for Clinique’s Fresh Pressed product, the ASA’s focus on what consumers would actually understand from the imagery and brand name was key in reaching the conclusion. The risk to a brand name from an upheld complaint was also highlighted in the Dextro Enery decision. This ruling also highlights that a complaint may still be upheld even where CAP copy advice has been given. There are also two contrasting decisions for financial services products looking at the issue of whether an advert is irresponsible for encouraging particular purchases.

Food and drink

Plenish Cleanse Ltd – 6 February 2019

Two complaints were made about two poster adverts for Plenish almond drink, both of which focused on the benefit to the planet of switching to a plant-based diet. The complainants understood that almond production could have a negative impact on water levels (and particularly in certain areas of the world that were already affected by drought), and challenged whether the adverts misleadingly exaggerated the environmental benefits of the product.

The ASA considered that Plenish Cleanse were able to substantiate that switching from cow’s milk to Plenish almond drink was one way in which consumers could transition to a more plant-based diet, and that Plenish almond drink had a lower overall environmental impact than cow’s milk. This was the meaning that the ASA considered was what consumers would understand from the two adverts. Plenish Cleanse were also able to satisfy the ASA that the almonds in their product were sourced from low-impact farms in Spain, in regions which were not encumbered by drought. In reaching its conclusion, the ASA reviewed the data provided, including lifecycle analysis for the product with comparative data for cow’s milk production both in the UK and abroad.

Considering carefully what consumers are likely to understand from any claims being made is always key – and is often surprisingly overlooked. The ASA will also always review carefully environmental claims being made and, in doing so, will generally look at the entire lifecycle of any product which is in question.

https://www.asa.org.uk/rulings/plenish-cleanse-ltd-a18-466208.html

ASC Twelve Ltd t/a Simple as Fat (13 February 2019)

This complaint related to seven different tweets from a “Simple As Fat” Twitter account, all effectively advocating a low carb high fat diet and referencing the ability to cure Type 2 Diabetes (and even erectile dysfunction caused by diabetes) as well as achieve weight loss, with the diet.

The complaint was on the basis that the tweet adverts discouraged essential treatment for conditions for which medical supervision should be sought, namely diabetes, erectile dysfunction and obesity, and whether the diet offered suitably qualified supervision, as well as whether the diet was a nutritionally well-balanced diet plan with weight loss claims which could be substantiated.

By way of response, the advertiser simply sought to rely on a new ‘Low Carb’ initiative being initiated by the NHS. Unsurprisingly, the ASA upheld the complaint in every respect. No evidence was provided to show the diet plan would be used under suitably qualified supervision, and the ASA was concerned that this would also discourage essential treatment for conditions for which medical supervision should be sought. There was also no actual evidence that the diet plan could result in weight loss. Any weight loss claim should be supported by rigorous trials on people; testimonials not supported by trials did not constitute substantiation. Moreover, details of the nutritional composition of the diet plan had not been provided, and the ASA was concerned that the diet plan was not in line with the government’s recommendations regarding a nutritionally well-balanced diet and how to lose weight healthily.

Although not a surprising outcome, this ruling does highlight the risk that companies may have with ill-thought through tweets. It is much more likely that issues will arise with promotional tweets than adverts that have to go through a more extensive production process.

https://www.asa.org.uk/rulings/asc-twelve--ltd-a18-465666.html

Dextro Energy GmbH & Co KG – 13 February 2019

A London Underground poster for the advertiser’s glucose tablets featured the text "LIFE'S HARD", with a large upward arrow with "CHEAT!" written inside. Further text stated "FEEL THE BURST - OF FLAVOUR" around a packshot with "DEXTRO ENERGY" in an upward arrow alongside the words "fast" and "direct", which appeared in lines denoting speed, and text which stated "orange + vitamin C". Small print at the bottom of the poster stated "Vitamin C can contribute to the reduction of tiredness and fatigue".

The complaint was on the basis that there was an implied claim that the product would provide an energy boost, which was a specific health claim which needed to be authorised on the EU Register of Nutrition and Health Claims made on foods.

Here the advertiser had sought advice from the CAP Copy Advice team and had understood that the advert was likely to comply with the CAP code. They also relied on the fact that the word “boost” did not appear in the advert, the word “energy” was part of the product name, “Dextro Energy”, which was a registered trade mark. Apart from the product name, the text of the advert did not mention energy. The advertiser believed that the word “burst” in its context ("FEEL THE BURST - OF FLAVOUR") would be clearly understood to relate to flavour and not energy.

Any implied health message could only be a general, non-specific claim that the food provided a benefit for overall good health or health related well-being, which was allowed under the Regulation on nutrition and health claims, if accompanied by a specific health claim included in the Register. The product contained vitamin C in sufficient quantities to use the authorised health claim “Vitamin C can contribute to the reduction of tiredness and fatigue”, which was included at the bottom of the ad.

Notwithstanding that the advertiser had sought copy advice for the advert, and were also entitled to use the authorised health claim for a source of Vitamin C, the ASA upheld the complaint. The ASA emphasised that health claims can be made through the use of images and in the overall presentation of an advert as well as in text. Even though the product name (using the word "Energy") had been registered as a trade mark before the required date of 1 January 2005, the ASA took the view that the product name, in the context of other claims and imagery, constituted a health claim which inaccurately reworded or exaggerated an authorised health claim. The ASA considered that the advert implied that the product provided an immediate increase in energy levels such as to allow those who consumed the product better to face the challenges of day-to-day life.

This ruling is a reminder that the ASA can, and reasonably often does, uphold a complaint even after CAP copy advice has been sought. Nutrition and health claims is a complex area where particular care needs to be taken. Here, the advertiser also ran the risk of its brand being compromised by an adverse ruling which in part impacted on the brand name.

https://www.asa.org.uk/rulings/dextro-energy-gmbh---co-kg-a18-452116.html

http://www.cms-lawnow.com/ealerts/2019/03/asa-snapshot-asa-decisions-published-in-february-2019?cc_lang=en

Food Fraud Quick Bites - What Is on the Food Fraud Horizon?

https://foodsafetytech.com/column/what-is-on-the-food-fraud-horizon/

People like to ask “what is the next melamine?” Of course, this is an impossible question to answer. However, methods of perpetrating food fraud are rarely novel. Even melamine had a history of use in feed products for nitrogen enhancement.

Examples of recurring food fraud in recent history include:

Herbs and spices: High-value commodities, especially when sold in dried, flaked or ground form, have been targets of fraud for ages. Although recent work looking specifically at oregano shed new light on the problems in that particular herb, the group as a whole is long known to be prone to substitution with other plant material and addition of dyes to improve color. Lead chromateand lead oxide have both been used in spices to add color. A recent study in the United States conducted testing on spices recovered from the homes of children diagnosed with lead poisoning and determined that some lead poisoning cases can be attributed to high levels of lead in spices consumed by children.

Milk: Milk has been repeatedly prone to the addition of protein-mimicking compounds such as urea, the addition of other fats such as vegetable oil, and the addition of preservatives such as formaldehyde. Melamine addition to milk discovered in 2008 was not entirely novel. The addition of melamine to artificially enhance the apparent protein content of a product was documented in scientific papers in the 1980s.¹

Meat: The two main concerns with meat fraud are species substitution and misrepresentation of production practices. The recent scandals involving horse meat and sick cows slaughtered for meat illustrate the continuing incentive to substitute less expensive species and to misrepresent the production practices of meat.

Liquor: Alcoholic beverages are also a high-value target, especially if they are a popular brand. Counterfeit alcohol is a common form of food fraud cited in the Food Fraud Database. Unfortunately, the use of methanolin unregulated liquor production repeatedly results in illnesses and deaths in consumers.

What forms of food fraud will be common in the coming years? Millennials reportedly place value on sustainability, convenience, high protein, and production practices such as organic and “local.” Verifying claims around production practices through long food supply chains is notoriously challenging. Increasing interest by consumers in these types of label claims may increase this type of fraud in the future.

Reference

1. Bisaz, R., and A. Kummer. “Determination of 2, 4, 6-triamino-1, 3, 5-triazine (melamine) in potatoe proteins.” Mitt. Gebiete Lebensm. Hyg 74 (1983): 74-79.

UK government offers no-deal Brexit advice to food companies

The UK government has issued advice to the country's food producers in the event of the country leaving the EU on 29 March without a trade deal.

The Government's guidance covers areas such as importing and exporting, food labelling, marketing standards and employing EU nationals.

The advice was published today (13 March), following the vote in the House of Commons last night in which UK Prime Minister Theresa May's Withdrawal Bill was defeated by 149 votes. The defeat makes a no-deal Brexit a real possibility.

The guidance on importing and exporting includes prompting businesses to get a UK Economic Operator Registration and Identification (EORI) number so they can continue to import or export goods and apply for authorisations.

The Government also advises businesses decide if they want to hire an import-export agent, or make the declarations themselves. It suggests companies contact the organisation that moves their goods (for example, a haulage firm) to find out what information they need to make the declarations for those goods, or if they will need to make them themselves.

On labelling, the Government says the rules for what producers must show on food labels will change for some food and drink products if the UK leaves the EU without a deal.

The changes include country-of-origin labelling, food business operator (FBO) address labelling, use of the EU emblem, use of the EU health and identification marks, use of the EU organic logo and use of the geographical indication (GI) logo.

On marketing standards it advises some of the processes food producers follow will change if the UK leaves the EU without a deal. Products that may be subject to changes include fruits and vegetables, beef and veal, eggs and poultry meat.

On employing EU workers, the Government guides that if the UK leaves the EU without a deal, citizens from the bloc who are resident in the UK before 29 March 2019 will be able to apply to the EU Settlement Scheme to get settled or pre-settled status, which will mean they can continue to live, work and study in the UK.

If the UK leaves the EU without a deal, there will be a new process for EU citizens arriving in the UK before 31 December 2020. From 1 January 2021, a new skills-based immigration system will launch.

https://www.just-food.com/news/uk-government-offers-no-deal-brexit-advice-to-food-companies_id141131.aspx

Study shows surprising environmental impact of organic farming

Growing organic crops takes a bigger toll on the environment than growing crops conventionally, according to a study [ https://www.nature.com/articles/s41586-018-0757-z ]  published recently in the journal Nature.

The impact stems from the fact that more land is typically required for organic growing—something that really shouldn’t be all that surprising, according to researcher Stefan Wirsenius, an associate professor at Chalmers University of Technology in Sweden and one of the study’s authors. Still, however, for many, the research results were unexpected and alarming.

“People have been not only surprised, but also rather upset, even angry,” says Wirsenius. “Quite a few have seen it as an ‘attack’ on organic farming. Our research just points out something that should be very obvious: that using more land for the same output, which organic farming does because of its lower yields per area, has consequences in terms of carbon storage.

“Our study,” he continues, “shows that organic peas, farmed in Sweden, have around a 50% bigger climate impact than conventionally farmed peas. For some foodstuffs, there is an even bigger difference. For example, with organic Swedish winter wheat, the difference is closer to 70%.”

The researchers developed a new metric called “Carbon Opportunity Cost” to use in their assessment of environmental impact. Wirsenius explains that when land is converted from forest to farmland, the deforestation means that carbon stored in the previously existing forest is converted to carbon dioxide, which increases atmospheric carbon dioxide levels. What’s more, the researcher says, by continuing to use land for agricultural crops, the opportunity for carbon storage that could be achieved if the land were allowed to revert to forest is lost. According to Wirsenius, existing methods for assessing the climate impacts of different land use fail to consistently account for the effects of carbon storage.

“What I hope that people would take home from this research is that there is almost always a carbon storage cost of using land, regardless of purpose,” he says.

https://www.nature.com/articles/s41586-018-0757-z

Brexit - Litigation Risk for the Food and Beverage Industry?

AUTHOR(S): Michael Finn Partner – Dublin michael.finn@matheson.com

PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution, Food and Beverage

The food and beverage industry, Ireland’s largest indigenous sector, is currently facing into an unprecedented challenge with the UK’s imminent departure from the EU. The UK market is by far the most important export market for this sector with an export value of €4.4 billion (1). The precise impact Brexit will have, and the opportunities it may present, is unclear..

The withdrawal agreement (2) envisages specific provisions for the food and beverage industry at the time of the UK’s exit from the EU, but this, of course, is subject to that agreement being adopted.

As is well publicised, Ireland’s food and beverage industry has been contingency planning for some time in the event that the withdrawal agreement is not adopted. Notwithstanding these contingency plans, there is an increased litigation and regulatory risk for this sector as a direct result of Brexit. For example, the sector may be facing an increased risk of contractual disputes between supply chain partners or logistics service providers as a result of delays at custom points.  For those in the industry whose contingency plans involve the stockpiling of certain essential goods or materials, there is an increased risk of disputes with insurers (aside from the increased exposure to theft or fraud) in the event that insurance cover is not increased to take account of the additional stock and there is a loss. Directors and officers should also bear in mind that they are at increased risk of potential litigation from shareholders stemming from the level of contingency planning for Brexit.

There is also exposure to potential disputes or regulatory investigations over compliance with the post-Brexit regulatory requirements in the UK.

What happens in the event of no-deal?

The UK government has published a number of technical notices to UK food and beverage producers which provide guidance in the event of a “no-deal” scenario. While these notices are addressed to UK producers, they do however offer some guidance for Irish producers.

The key areas focused on in these notices are:

• geographical indications (“GI”);
• export and import of animal products;
• labelling; and
• tariffs and customs duties.

GI

A GI is a sign or labelling placed on products that have a specific geographical origin and as a result possess certain qualities, characteristics, or reputation attributable to that particular place.  A notice published on 5 February 2019 (3) indicates that the UK will have its own GI scheme that will mirror that in the EU, ie using the same classes provided by the EU scheme.  UK producers will have three years to comply with the UK GI logo scheme.  The notice states that Irish whiskey, cream and poteen produced in Ireland will have EU and UK GI protection and will not be required to apply for further protection.  UK producers will have to reapply to the European Commission in order to regain EU protection and the right to use the EU GI logo.

Export and Import of Animal Products

The UK Government has stated that in the event of a “no-deal” withdrawal, the health and identification marks required on the labelling of animal products produced in the UK must be updated, removing EU references (4).

Labelling

Unless the EU and the UK reach an agreements in advance of 29 March 2019 whereby both recognise each other’s standards, the EU emblem must be removed from products produced in the UK, and the EU organic logo must be removed on organic products produced in the UK.  References will also need to be removed from all food and beverage labels, including products where some ingredients are made in EU countries (5).

The food and beverage industry will also have to consider any UK legislation that is enacted in relation to labelling and whether current EU labels would be compliant.  If the UK enacts legislation that is not in compliance with EU laws, and further if current EU compliant labels are prohibited by such legislation, producers will have to modify labelling of products being sold in the UK market.

Any product that have been placed in the UK market on or before 29 March 2019 will be acceptable to be sold until those stocks are exhausted, regardless of whether the labelling complied with UK legislation.  The European Commission has published guidance in relation to the concept of goods placed on the market prior to the withdrawal date (6).  This publication also offers guidance in relation to considering whether goods will be subject to the payment of imports and export tariffs and duties.

Tariffs & Custom Duties

The UK Government also states (7) that customs and excise duties, and declarations that apply currently between the UK and non-EU countries will cease to apply between the UK and the EU from 30 March 2019.  Trade will therefore be on the default World Trade Organisation terms, which are often significant for food and drinks products.   The WTO's "most favoured nation" rule provides that the UK cannot simply lower these tariffs for the EU, or any other specific countries, unless it agrees a trade deal with that country.  For UK food and beverage producers exporting to the EU, the tariffs will be on average 35.9% on dairy products, 15.5% on animal products, and 21.1% on sugars and confectionary.  Lower tariff rates are set on cereals, fish, and fruit and vegetables (8).

There will be further logistical difficulties in the event of a “no-deal” Brexit, when exports and imports will be required to cross border control points and deal with further administrative burdens.  On top of the payment of VAT, customs and tariffs, and paperwork requirements, product checks such as veterinary checks will have to be carried out.  It is also possible that Irish cargo travelling through the UK by land, on the way to the EU, will have to go through two custom controls, when entering the UK and when leaving the UK to enter the EU. This will greatly increase the cost and time for importing and exporting food and drink produce, especially as such delays will impact the short shelf life of these products.

What happens in the event of a negotiated exit?

In the event that the UK does ratify a withdrawal agreement prior to 29 March 2019, there is likely to be a transition period during which the laws of the EU will still apply to the UK.  This would likely be the best possible outcome for the industry.  This transition period may be in place until 31 December 2020, and may be extended further.  During this period EU law will apply to and in the UK.  Further, if a backstop is agreed upon, a single customs territory between the EU and the UK will be created during the transition period, which shall apply until an agreement has been reached following 31 December 2020.  If no such agreement can be reached, the provisions set out in the withdrawal agreement shall apply following the termination of the transition period.

For the food and beverage industry this means that the current status quo will be maintained, and it will not be until 2021 when changes will be seen in relation to food and drink legislation and labelling, and customs and excise duties.

The Irish Government has published a contingency plan in the event of a “no-deal” Brexit, in the form of a Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019, and a Brexit Contingency Action Plan (9).  The Bill provides for amendments to existing legislation that will be required in the event of a “no-deal” Brexit.  The contingency plan offers some guidance to Irish citizens and industries, and sets out steps being taken by the Irish Government that are relevant to the food and drinks industry.

For example, the Government is increasing staffing and ICT systems in Revenue and at ports and airports, including veterinary staff, to ensure that any necessary infrastructure will be in place and operational by 29 March 2019 in order to reduce delays expected as a result of import and export controls.  The Government is also considering the disruption to the so-called land bridge that is used by Irish importers and exporters to transport goods through the UK to international markets, and locating new routes that could be used following Brexit.  Further, the EU has confirmed that the UK can join the Common Transit Convention.  This reduces the requirement for additional customs checks for goods passing through one country on the way to their final destination in another.  This will hopefully enable Irish carriers to continue using the UK as a route to continental Europe, and offers some certainty for carriers focused on this route.

Summary 

Whether the UK will leave the EU on 29 March 2019 and be it with or without a withdrawal agreement, or whether the Brexit process will be extended, remains uncertain.  However, it is clear that the impact of any of these scenarios will be felt by the Food and Beverage industry.  This will be seen in all aspects of production and trade from ingredients, labelling, distribution and customs checks, insurance and the payment of tariffs and excise duties.  Certainly, the ratification of a withdrawal agreement would provide certainty.  However, the food and beverage industry should be prepared in either event, to adjust current trading patterns, plan for increased costs, consider potential UK legislation regarding packaging and labelling, and also potential litigation as a result.

This article was co-authored by Senior Associate, Aoife McCluskey.

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1. “Brexit – the challenge for the food and drink sector” https://www.fooddrinkireland.ie/Sectors/FDI/FDI.nsf/vPages/Key_pillars~brexit/$file/Brexit+-+the+challenge+for+the+food+and+drink+sector.pdf
2. https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf
3. https://www.gov.uk/guidance/protecting-food-and-drink-names-if-theres-no-brexit-deal
4. https://www.gov.uk/government/publications/importing-animals-and-animal-products-if-theres-no-brexit-deal/importing-animals-and-animal-products-if-theres-no-brexit-deal
5. https://www.gov.uk/government/publications/producing-and-labelling-food-if-theres-no-brexit-deal/producing-and-labelling-food-if-theres-no-brexit-deal
6. https://ec.europa.eu/info/sites/info/files/qa_brexit_industrial_products_en.pdf
7. https://www.gov.uk/government/publications/trading-with-the-eu-if-theres-no-brexit-deal/trading-with-the-eu-if-theres-no-brexit-deal
8. https://www.wto.org/english/res_e/booksp_e/tariff_profiles18_e.pdf
9. https://www.dfa.ie/media/dfa/eu/brexit/brexitcontingency/No-Deal-Brexit-Contingency-Action-Plan-December-

EC Publishes 12th Amendment to the Plastics Regulation

The European Commission published the 12th amendment to the Plastics Regulation (EU) No 10/2011 on January 11, 2019, in the Official Journal of the European Union.  This amendment, Commission Regulation (EU) 2019/37, adds new substances to the list of substances that may be used in food contact materials (also referred to as the positive list or the Union list), makes corrections to pre-existing substances on the positive list, and clarifies what food simulants should be used for the overall migration testing of milk products.

Based on favorable scientific opinions from the European Food Safety Authority (EFSA), the Commission added the following substances to the positive list in Annex 1 of the Plastics Regulation:

• Poly((R)-3-hydroxybutyrate-co-(R)-3-hydroxyhexanoate), which is a biodegradable (co)polymer obtained from microbial fermentation used in the manufacture of packaging articles intended to be in contact with whole fruit and vegetables;
• Dimethyl carbonate as a monomer; and
• Isobutane as a foaming/blowing agent only.

Commission Regulation (EU) 2019/37 will enter into force 20 days after publication in the Official Journal of the European Union (i.e., on January 31, 2019) and it includes an exhaustion of stocks clause.