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Sept. 18 — France's constitutional chamber Sept. 17 upheld the country's ban on in-country sales and imports of bisphenol A in food-contact materials, but struck down its ban on the manufacture and export of food-contact materials containing BPA.
The European plastics lobby, PlasticsEurope, which has led industry's challenge against the law in the European Union and France, immediately vowed to continue its fight, particularly at the EU level. PlasticsEurope contends, in part, that the ban violates the European Union rules on free circulation of goods.
The 2012 law (No. 2012-1442) as of Jan. 1 “suspended” the manufacture, importation, exportation and sale in France of containers, packaging or utensils that contain BPA and that come into direct contact with food sold to consumers.
In February, PlasticsEurope filed a challenge in France's top administrative court, the Conseil d'Etat, arguing that the law's application of the Precaution Principle in France's Constitution is flawed and the law violates EU rules on free circulation of goods.
The Conseil d'Etat in June remanded the challenge's constitutional questions to the Constitutional Council, which in its Sept. 17 ruling let stand the ban on imports and sale in France of food-contact products containing BPA.
France's 2012 law modified a 2010 law (No. 2010-729) that suspended BPA use in baby bottles and baby-bottle nipples. A ban took effect Jan. 1, 2013, for food-contact materials intended for use with children younger than age 3.
In a statement, the Constitutional Council said it found that “the  law's suspension of imports and sale on the national market of products containing bisphenol A, considering the law's stated objective of protecting health, is not a manifestly disproportionate violation of the right to freely circulate goods.”
Since many foreign countries do allow sales of the products in question, however, France's suspension has no effect in those countries. Consequently, “France's suspension of manufacturing of the products in France and exports of them does restrict the right to freely circulate goods in a way that has no link with the [law's] stated objective,” the council said.
Michel Loubry, regional director for Western Europe at PlasticsEurope, told reporters Sept. 18 that the council's decision takes no position on the scientific debate on the safety of BPA or on the question of whether the law complies with EU legislation.
“In any case, we will continue our actions in Brussels and Paris to completely lift this ban, which completely clashes with the recommendations of health authorities,” Loubry said.
To justify its bans on BPA, France cited grave and imminent danger to its population, based on 2011 findings by the French Agency for Food, Environment and Occupational Health and Safety of “confirmed” reprotoxic, endocrine disruptor, brain development and other health effects linked to BPA in laboratory animals and “suspected” health effects in humans, at low doses.
Loubry noted that the European Food Safety Agency in January 2015 issued an opinion that current uses of BPA, including food-related uses, pose no health risks to consumers of any age.
He said that ruling deprives the French law of all scientific justification. PlasticsEurope will now focus on its pending challenge to the law at the European Commission level, Loubry added.
In addition, the Conseil d'Etat must now rule on PlasticsEurope's related legal challenge to a Dec. 8, 2014, note by the French government's General Directorate for Competition Policy, Consumer Affairs and Fraud, setting out application guidelines for the law, Loubry said.
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Constitutional Council Decision No. 2015-480 QPC of Sept. 17, 2015, is available, in French, at http://bit.ly/1FSrM4l.
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