|The prohibition on the manufacture of baby bottles containing Bisphenol A (“BPA”) in the EU entered into force on 1 March 2011; but a draft Regulation of even greater scope – which may impact harder on some Hong Kong and Chinese mainland exporters – has been notified by Austria, to outlaw baby-pacifiers and teething rings that contain BPA.
Businesses exporting these goods to Austria should be alerted to the Austrian plan, which may, eventually, influence lawmakers across the EU to adopt similar rules.
The Austrian draft Regulation was notified to the European Commission on 4 February 2011. It stipulates that the manufacture and placing on the Austrian market of pacifiers and teething rings with BPA is prohibited. It further provides that pacifiers and teething rings which contain BPA may be placed on the Austrian market, but only until inventories are depleted.
The draft Regulation was notified to the Commission in compliance with Directive 98/34/EC laying down a procedure for the provision of information in the field of technical regulations – the so called “98/34 notification procedure”. The Commission and other Member States have until 5 May 2011 to examine the draft legislation and may suggest amendments if they consider it necessary. Hong Kong manufacturers of baby products should follow this procedure closely as it may lead to Austria adopting a more far-reaching restriction of BPA-containing products than the EU-wide ban.
Since 1 March 2011, EU manufacturers are prohibited from using BPA in baby bottles, as has been foreseen in Directive 2011/8/EU regarding the restriction of the use of BPA in infant feeding bottles. As of 1 June 2011, the same Directive will outlaw the placing on the market and import into the EU of baby bottles containing BPA. Member States are now obliged to inform the Commission of the national legal measures they take to comply with the provisions of this Directive. In view of the Austrian initiative towards taking the BPA-ban further than required by the EU, it cannot be excluded that other European countries will choose to follow Austria’s approach.
The EU prohibition of BPA has been highly criticised by the plastics industry, although the industry has voluntarily begun withdrawing BPA-containing baby bottles from the market and replacing them with alternative products, despite not strictly being required to do so until 1 June 2011.
In Directive 2011/8/EU, the Commission has referred to glass as one of the main alternative materials to plastics that contain BPA. This is believed to lead to an increased demand of baby bottles produced with glass. This should, in turn, signal possible new business opportunities for Hong Kong and mainland Chinese producers of, among others, glassware products.
BPA came under EU scrutiny in 2010 after the Danish government’s decision to ban the use of BPA in the manufacture of plastic materials coming into contact with children’s food. In July 2010, France also announced a ban on the manufacture, import, export and placing on the market of baby bottles containing the chemical. Further to a request from the Commission, the European Food Safety Agency (EFSA) made an assessment of the risks of the current use of BPA, concluding that the recommended level of safe daily intake of BPA should be maintained. The Commission, however, decided to apply the ‘precautionary principle’ and banned BPA-containing baby bottles due to questions raised by EFSA with respect to possible negative impacts of BPA on infants.
The draft Austrian Regulation cannot enter into force before the end of a so-called standstill period on 5 May 2011. However, given the Commission’s and the Member States’ right of scrutiny, the entry into force may have to be further delayed by another three months from the expiry of the standstill period.