Food Contact Materials (FCM) - New EU rules on recycled plastic materials and articles – Great Britain reflects

On 10th October 2022 (next week), Regulation (EU) 2022/1616 on recycled plastic materials and articles intended to come into contact with foods (implemented earlier in the year) is due to come into force in all EU member states. This repeals the previous regulation on this matter (Regulation (EC) No 282/2008). The new legislation forms part of the measures being brought forward under the Circular Economy Action Plan (CEAP). The changes are designed to reduce dependency on raw materials, boost the market for recycled plastics, and ensure that recycled plastics are safe when used in contact with food.

Constituents of FCM that transfer from packaging materials into food can not only affect the safety of the food but can also impact human health, the quality of the food, its taste and smell, and its appearance. FCM legislation therefore sets out rules that should ensure the safety of these materials. It includes general rules applicable to all FCM and specific rules on materials, such as plastic and recycled plastic. Recycled FCM inevitably have content that is recovered from waste and may be contaminated with substances originating from previous use and from other waste. The Commission acknowledged that as innovative novel plastic recycling technologies are being developed, and the market of recycled plastics is growing, revised measures were required to address the potential risk to human health and to ensure that such innovation was not inhibited. As a result, the new legislation contains additional rules for certain recycled materials.

The key changes that apply in the EU from 10th October 2022 are:

• Specific rules will apply to the placing on the market of plastic with recycled content, including on the collection and sorting of the plastic input, its decontamination, and conversion. This will affect the types of materials that can be used, documentation and labelling.
• Various kinds of recycled plastic and recycling technologies are within the scope of the regulation including mechanical recycling, recycling of products from a closed and controlled product chain, the use of recycled plastic behind a functional barrier, and forms of chemical recycling.
• New rules applicable to novel recycling technologies and the evaluation of recycling processes will become applicable.
• A register including recyclers and recycling installations is to be established and will be published on the European Commission website.

The new regulation forms part of the wider CEAP and contributes to the overall sustainability of the food system. The CEAP sets out that plastics are to be used in a more sustainable way, whilst ensuring the performance and safety of such materials. Plastic FCM makes up around 50% of the total plastic packaging and hence this new regulation will seek to reduce the impact of plastic FCM. In addition to this, the CEAP seeks standardisation and the use of quality management systems to assure quality of the collected waste destined for use in plastic FCM.

There are also further changes that are due to come into force on future dates, which includes:

• From 10 July 2023, FCM containing only recycled plastic manufactured with a suitable recycling technology may be placed on the market, unless manufactured with a novel technology and in accordance with certain provisions of the regulation.
• Also from 10 July 2023, PET recycling processes will be required to be authorised by the European Food Safety Authority (“EFSA”), with authorisation decisions placing restrictions on recycling processes. Processes for which EFSA did not receive an authorisation application before that date may not be used to place recycled plastic on the market.
• From October 2024, quality assurance systems used to collect and pre-process plastic input will need to be certified by a third-party. The regulation will allow granting individual authorisations for more than 200 mechanical PET recycling processes, which will help the industry to meet the binding 2025 target of 25% recycled plastic in PET beverage bottles.

Guidance published by the European Commission confirms that recyclers of plastic FCM must ensure full compliance with the new regulation and recommends that recyclers using technology that is not presently considered suitable should consider the procedure applicable to novel recycling technologies. Businesses applying recycling processes that are already considered suitable are strongly advised to register their recycling installations and schemes (via the quick registration on the European Union Register) without delay. Registrations have been accepted since 26 September 2022.

It will be the responsibility of member states to provide an opinion on whether novel recycling technologies can be considered suitable and whether specific recycling processes can be authorised to meet the EFSA standard. Member states will also be responsible for the enforcement of compliance with the regulation. It is likely organisations be subject to audits on quality control, and to requirements to remove certain types of recycled plastic from the market if its safety cannot be ensured. This opens the way for potential inconsistencies of approach across the EU.

FCM appear to be an area of focus for the EU currently. Following an initial feedback period, the European Commission launched a public consultation on the revision of EU rules on FCM on 5 October 2022, including proposals aiming to reduce the presence and use of hazardous chemicals. The new regulation and the consultation proposals reflect the need for balance between the impact of chemicals on humans and the environment and supporting sustainable alternative FCM such as recycled plastic.

The position in Great Britain (GB) creates further inconsistency since it is not bound by the changes. GB remains subject to existing Regulation 282/2008, as retained in GB law. Nevertheless, a call for evidence issued by the Food Standards Agency (FSA) regarding the use of recycled plastic originating from ocean-bound/cycle schemes and similar environmental collection in FCM products closes on 21 October 2022. This suggests that at some stage GB may decide to adopt the same approach as the EU or continue to diverge and apply a GB focussed approach. The FSA intends to pass information collected along to the Scientific Advisory Committee for evaluation and expects to publish a summary of responses received within three months of the consultation.

Businesses likely to be affected by these developments should monitor these changes and take appropriate action, as necessary to ensure continued compliance.

Article co-authored by Laura Hipwell, Trainee Solicitor at CMS.