Current Regulation of Paper in the European Union: No Harmonized Approach
Food-contact paper and board, although identified by the European Commission as an area for specific legislation, currently is not the subject of harmonized regulation in the European Union (EU), and the European Commission has not made any recent overtures to promulgate a specific Directive concerning food-contact paper and board. Food-contact materials that are subject to harmonized EU Directives (such as food-contact plastics) must comply with these Directives once they are in force and binding in the Member States. On the other hand, paper and board materials must comply with the general safety principles set forth in the EU's Framework Directive (Directive 89/109/EEC), and the appropriate laws of each of the EU Member States, subject to the principle of mutual recognition.
As described in our packaginglaw.com article, "Food Contact Materials: The View From The European Union," the principle of mutual recognition allows for the legal importation and sale into one Member State of products that are legally marked in another Member State, even if the products do not comply with the specific regulatory requirements of the country of import. Thus, establishing a suitable legal status for food-contact paper and board in the EU requires one to look at the legislation of individual Member States, as well as other relevant sources, including the Council of Europe (CoE) Resolution on paper and board.
Member States such as Finland and The Netherlands, for example, maintain national requirements for paper and board, while Germany has established Recommendations concerning paper and board for different end-uses (e.g., baking and filter papers). National regulations may include positive lists for substances, impurity specifications, and sanctioned test methods. For Member States without specific requirements for paper and board (e.g., the United Kingdom, Denmark, and Sweden), such materials are required to be safe, which can be established through references to national positive listings, EU Directives (such as the Plastics Directive, 2002/72/EC), evaluations by the EU Scientific Committee on Food (now the European Food Safety Agency), clearances in other jurisdictions (e.g., clearances under the U.S. Food and Drug Administration's food additive regulations), and CoE Resolutions.
The CoE Resolution on paper and board, Resolution AP (2002)1, is a non-binding document that nonetheless serves as an important reference in the EU. The CoE is an intragovernmental body of EU and non-EU countries that advises on the regulation of many different social and legal areas, including food-contact materials. In the absence of harmonized regulation of paper and board, CoE Resolution AP (2002) 1, in addition to national requirements, has emerged as an important consideration for many manufacturers of paper and board materials and components. This Resolution applies to all food-contact paper, including coated board and multilayers. Paper that is used in food-contact articles, but that is separated from the food by a functional barrier does not fall within the purview of the Resolution. (The CoE has not yet developed test methods for determining the presence of a functional barrier.) The Resolution also does not apply to non-woven materials, kitchen towels, napkins, and filter materials that are of a high base weight.
Generally, compliance with the Resolution requires that paper materials: (1) satisfy the safety requirements of Article 2 of the Framework Directive, (2) be manufactured in accordance with good manufacturing practice (GMP), (3) be manufactured from materials with the lowest possible level of dioxins, and (4) not release antimicrobial substances. More specifically, the CoE Resolution requires that paper and board comply with four technical documents that accompany the Resolution.
Technical Document No. 1, which is still being developed, will contain a list of permitted substances as well as outline any restrictions on heavy metal or organic contaminants. Technical Document No. 2 sets forth migration and extraction test methods and contemplates the use of calculations for demonstrating compliance with applicable restrictions. Technical Document No. 3 contains guidelines for recycled paper, and Technical Document No. 4 contains guidelines for GMPs that have been prepared by the Confederation of European Paper Industries (CEPI). Technical Document No. 5 of the Resolution will be a practical guide for users of the Resolution and is still under development.
In sum, supporting an appropriate legal status for food-contact paper and board in the EU requires an examination of Member State legislation in conjunction with other sources that address the safety of food-contact materials, including paper. At this time, the CoE Resolution stands out as an authoritative resource, although it is still in development, and it is possible it will be at some time officially implemented into the law of some Member States.
 We do note that paper used in multilayer plastic articles could potentially be regulated under proposed revisions to the Plastics Directive. The European Commission has proposed to cover multilayer materials where one or more layers is not made entirely of plastic, provided that the layer in contact with food consists of plastic.