BLL statement on the plan for a national “Mineral oil regulation”

- At the beginning of March 2017, the German Federal Ministry of Food and Agriculture (Bundesministerium für Ernährung und Landwirtschaft, BMEL) announced the fourth draft of a 22nd regulation on the modification of the German Consumer Goods Ordinance with last edit as at 07 March 2017 for the creation of a national “mineral oil regulation”.

The BMEL thus voices the political desire to treat the issue of infiltration of specific mineral oil hydrocarbons from foodstuffs or food contact materials containing recycled paper with a national regulation concept.

The modified concept of the fourth draft now plans on restricting the transfer of material of exclusively mineral oil aromatic hydrocarbons (MOAH) from foodstuffs produced with the use of recycled paper in such a way that this paper is not detectable (the current analytically permissible detection limit is 0.5 mg/kilogram of foodstuffs). These requirements should be achieved through the use of functional barriers that should be prescribed as mandatory for food contact materials (FCM) made from paper containing recycled paper, cardboard or carton.

Draft is political actionism and not a solution to the complex situation

The associations and companies organised in the German Federation for Food Law and Food Science (Bund für Lebensmittelrecht und Lebensmittelkunde e.V., BLL) have expressed their disappointment with BMEL and their unilateral approach. The business communities concerned have addressed the issue since 2010 with numerous initiatives, technological developments and foundational cause analyses, and processed these successfully as a responsibility for safe products. Through the results of official food monitoring, product testers and self-inspection, it is objectively provable that the contamination situation of the undesirable mineral oil saturated hydrocarbons (MOSH) and of the mineral oil aromatic hydrocarbons (MOAH) could be reduced. In particular, the minimisation of MOAH necessary according to scientific evaluation was intensively pursued and continues to be pursued.

The current findings show that the infiltrations into the raw material, foodstuff and packaging chain, collectively referred to as the “MOSH/MOAH“ issue, is much more complex and requires further research and inspection of measures. The standardisation and the validation of applied analytics, a coordinated differentiating assessment of the findings and evaluation foundations for barrier effects are mainly currently necessary to be able to start and to assess further targeted steps.

This fourth draft of a national mineral oil regulation neither provides for what has been achieved nor is it equivalent to the acknowledged complexity that goes beyond the use of barrier-optimised packaging containing recycled paper.

From the perspective of the BLL, the publication of the draft primarily represents a political gesture at this point in time. The business communities have little sympathy for this, since the draft neither contributes to legal certainty nor is a solution to open and complex issues. According to the business communities, the draft creates false expectations: barrier materials as technological solutions are at most a partial solution, and their use cannot lead to “MOAH-free” foodstuffs.

The national regulation principally damages the domestic market

As already voiced in relation to the first three drafted regulations, all the business communities vehemently oppose a national measure for the unilateral regulation of packaging materials. Specific German requirements on the use of barriers for recycled paper-based packaging materials would extremely limit the flows of goods in the European and international market. Packaging manufacturers and packing companies in the EU and in third countries would be indirectly affected, and importers to Germany discriminated and restricted in the competition. The dimensions of an interference of this kind cannot be quantitatively described; empirical data for these complex flows of goods are missing; the business communities have great concerns about the extent of the arising problems.

European investigation has begun through monitoring

In January 2017, the European Commission published the recommendations for Europe-wide monitoring of the occurrence of mineral oil hydrocarbons in foodstuffs (RECOMMENDATION 2017/84 OF THE COMMISSION from 16 January 2017 on the monitoring of mineral oil hydrocarbons in foodstuffs and materials and items intended to come into contact with foodstuffs, Official Journal of the European Union no. L 12 as of 17 January 2017, p. 95). With the collection of data, the foundation for EFSA, the European Food Safety Authority, should be laid to carry out an exposure assessment and risk evaluation. The issue of the action required for a European regulation can be built upon this.

The national and European foodstuffs and packaging industry has embraced this step by the commission consensually and agreed to an active support of the monitoring. The urgently necessary technical guidelines on the standardised application of testing methods across Europe are currently missing.

Against this backdrop, a unilateral German regulation measure finds no foundation from a local point of view. The acceptance of a measure of such a kind - clearly damaging to the domestic market - by the other member states in the compulsory notification procedure (TRIS) is therefore highly questionable. In addition to this, the intervention of the European Commission appears to be likely due to the ongoing European monitoring.

Alternative methods: voluntary concepts and agreed action thresholds

The communities concerned from the foodstuff and packaging industry have successfully turned the numerous acquired findings into costly measures such as product and packaging development or substitutions of packaging material. Further steps on the identification of sources of infiltration and influence along the various value chains are currently being taken. Several research projects on causes of infiltration, analysis development and barrier assessment were initiated by the associations, which should result in concrete recommendations for action.

In 2016, a so-called “toolbox” was developed for the production of cocoa and chocolate which assists those responsible in making decisions on targeted minimisation approaches and in preventing risks. A “toolbox” with similar objectives is being prepared by the BLL with an up-to-date range of information on the level of knowledge on use in other food production and packaging processes, and will soon be available.
From the point of view of the business communities and with regard to the approaches, these alternative courses of action are more comprehensive, lead to adequate measures and are more targeted at minimisation than this regulation measure of the BMEL, which is unilaterally limited to the infiltration situation by recycled paper-based packaging, but is far too restrictive on the matter.

Another step for which the business communities have expressed fundamental support would be a value concept to be agreed between associations and supervisory bodies that follows the ALARA principles. By agreeing on temporary action thresholds (reference values/ target values) as a common reference basis, procedure and assessment safety could generally be created in a manner compliant with practice.

The BLL, as an umbrella association indicates towards the federal states (Bundesländer) (working group of the Federal Committee on Consumer Protection “Food, consumer goods, wine and cosmetics (ALB)) that it strives for this collaboration and takes on communication in value chains.

A full version of the statement with notes on the draft in detail is available for download: BLL statement on the plan for a national "Mineral oil regulation" (April 2017)