Politics and Packaging in Europe and North America Same Packaging Requirements for All? Regulatory Convergence Through EU and US Trade Negotiations Laurent Ruessmann 8th Joint Meeting of Pack2Go Europe and the Foodservice Packaging Institute London, 5 June 2015 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
Introduction • US requirements for food packaging under the jurisdiction of the FDA – Food, Drug, and Cosmetic Act – National Environmental Policy Act – State and local regulations • EU requirements for food packaging (beyond Directive 94/62 of EP & Council) – Regulation 1935/2004 of EP and Council (food contact materials) – EC Regulation 1881/2006 (maximum levels for certain contaminants in foodstuffs) – EC Regulation 10/2011 (plastic food contact materials) & Regulation 282/2008 (recycled plastic FCMs) – Member State legislation (e.g. re inks, adhesives, BPA?, non-harmonised FCMs) • Many differences just in packaging requirements (let alone labelling, etc) • TTIP : opportunity for regulatory convergence? 2 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
Trans-atlantic Trade and Investment Partnership • Negotiations launched February 2013 with initial completion target of October 2014 • Ambitious in scope with multiple objectives but strong focus on regulatory convergence – Market Access, including removal of import duties : goods, services, investment, procurement – Regulatory Issues, including removal of non-tariff barriers : Sanitary and Phytosanitary (SPS) measures, Technical Barriers to Trade (TBT), sector-specific regulatory issues – Global Rules and Principles: intellectual property rights (IPR), trade facilitation, competition/State-owned enterprises (SOEs)/State aids, localization measures • Question now is how broad and when? 3 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
TTIP – possibilities for regulatory convergence • WTO+ rules in relation to Technical Barriers to Trade (TBT) and Sanitary and Phyto- Sanitary (SPS) Agreements – Obligations in making and applying rules with aim of getting removal of non-tariff barriers – Will not achieve convergence but can support convergence by strengthening general principles framework • Sector- specific provisions : convergence by sector (e.g., auto, pharma, …) • Regulatory cooperation : structure to regulate further together 4 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
TTIP – sector-specific provisions • Essentially depends on sectoral initiatives – Easier when there have already been bilateral or multilateral initiatives – Not difficult to propose whatever sector agrees on in EU and US : negotiators have been looking for easy wins and are open to suggestions • Examples to date – Automobile – Pharmaceuticals – Medical devices • What has packaging sector asked for? What could it ask for? 5 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
TTIP – regulatory cooperation • EU proposal tabled in the negotiating round of 20-24 April 2015 • Objectives : – Reinforce cooperation while pursuing high level of protection in relation to various public policy objectives (e.g. health & safety, environment, consumers, personal data, etc.) – Promote compatibility of EU and US regulatory acts – Promote transparent & predictable environment – Further development, adoption & strengthening of international instruments, and timely implementation and application, to achieve consistent outcomes • No obligation to achieve any particular regulatory outcome • Does not apply to cross-sectoral framework principles (e.g., competition law, consumer protection, IPR protection, protection of personal data, environmental protection) • Does not oblige any change to fundamental principles governing regulation (e.g., in areas of risk assessment and risk management) 6 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
TTIP – regulatory cooperation (Section II) • Section II covers “Good Regulatory Practices” and applies to regulatory acts at central level in areas within scope of TTIP • Transparency – Early information on planned acts : at least once a year and, if undergoing impact assessment, make publicly available ASAP information on planning and timing – Stakeholder consultations : offer reasonable opportunity for input and take contributions into account (examine, not necessarily take on board) • Impact assessments – Will carry out and assess relation to international instruments, how take account of regulatory approaches of other & impact on international trade or investment – Publish no later than the proposed or final regulatory acts – Promote exchange of information, including methodology & economic assumptions 7 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
TTIP – regulatory cooperation (Section III) • Section III covers “Regulatory Cooperation” and applies to regulatory acts at both central and non-central level in areas within scope of TTIP • Bilateral cooperation mechanism – Foster information exchange & seek increased regulatory framework compatibility – Identify priority areas for regulatory cooperation – Designate Focal Point responsible for exchanging information • Information & regulatory exchanges led by regulators & competent authorities – In list of planned regulatory acts, identify those likely to have a significant impact on international trade or investment, and regularly inform about other proposed acts – Enter into constructive exchange when requested via respective Focal Points – When initiated, one party may propose examination of means to promote regulatory compatibility, including through mutual recognition of equivalence, harmonisation, or simplification of regulatory acts 8 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
TTIP – regulatory cooperation (Section III) (cont.) • Information & regulatory exchanges at non-central level • Timing of regulatory exchanges – When requested, it shall start promptly – Re planned acts at central level, may take place at any stage of preparation (after announcement of intent to regulate and before (US) publication of draft for consultation or (EU) adoption of Commission proposal) – But no obligation to suspend or delay steps foreseen in domestic procedure • Promoting international regulatory cooperation • Regulatory Cooperation Body : to monitor and facilitate implementation – Publish Annual Regulatory Cooperation Programme reflecting common priorities – Monitor implementation & report to Joint Ministerial Body – Consider new initiatives, prepare joint initiatives, ensure transparency, … – Provide means for stakeholder input 9 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
Concluding observations • In terms of potential for regulatory convergence, there is plenty (even within EU) • Timing is rather advanced for the proposal of sector-specific provisions • Whatever is achieved in terms of structure for regulatory cooperation, much will depend on industry how much is achieved in practice 10 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
Thank you for your attention! Laurent Ruessmann Partner – Brussels E: laurent.ruessmann@fieldfisher.com T: + 32 2 742 7061 M: +32 496 165 169 11 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / fieldfisher.com
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