Reed Smith Client Alerts

Authors: Benoit Charot

Type: Client Alerts

On 17 September 2015, the French Constitutional Council (“Conseil Constitutionnel”) issued a decision partly repealing law no. 2010-729, dated 30 June 2010, as amended by law no. 2012-1442, dated 24 December 2012, prohibiting the use of bisphenol A in food packages, thereby promoting the principle of free enterprise to the detriment of the precautionary principle.

It must be reminded that, originally, French law prohibited the use of bisphenol A in feeding bottles and then extended this prohibition to “the manufacturing, importation, exportation and placing on the market, whether in return for payment or free of charge of […] any packaging, container or utensil containing bisphenol A and designed to be in contact with foodstuffs”, which was implemented on 1 January 2015. Such a prohibition went far beyond European directives and most European member states did not have such limitations on the use of bisphenol A.

In that context, Plastics Europe, a professional European organisation representing plastic manufacturers, brought the matter before the French State Council (“Conseil d’Etat”) to seek the annulment for abuse of power of a note from the Directorate-General for Competition, Consumer Affairs and Prevention of Fraud (“DGCCRF”) dated 8 December 2014 concerning the aforementioned law. The company also asked the French State Council to refer to the French Constitutional Council a preliminary ruling on constitutionality (“question prioritaire de constitutionalité”) concerning this law’s provisions.

Consequently, on 17 June 2015, the French State Council referred this question to the Constitutional Council on the grounds “…that the argument according to which [these provisions] prejudice the rights and liberties guaranteed by the Constitution, notably in the sense that they prejudice the principle of free enterprise in a way that the precautionary principle, which is enshrined in article 5 of the Charter for the Environment, may not justify, raises a question relating to the scope of this constitutional provision”.

On 17 September 2015, the Constitutional Council ruled that prohibition on the importation and placing on the national market of packaging, containers or utensils containing bisphenol A did not constitute a disproportionate interference with the principle of free enterprise considering the objective of health protection pursued. However, it partly granted Plastics Europe’s request by deciding that the manufacturing and marketing of such products should be authorised, on the grounds, notably, that they were allowed in numerous countries.

Such a decision, which is quite surprising considering the courts’ usual line of cases, exemplifies the difficulty of the legislator who has to find a usually fragile balance between the precautionary principle enshrined in our law and other principles of equivalent value, in this case the principle of free enterprise, in the context of the use of substances whose effect are often little known.

Client Alert 2015-260