EU Regulation of Pet Food Packaging
By Keller and Heckman LLP’s Packaging Practice Group
The European Union (EU) has regulated food for livestock for the past few decades, as part of an effort to establish a framework for the agricultural sphere of the European Common Market. More recently, the regulatory effort in that area has shifted its emphasis towards the protection of livestock (and thus, indirectly, the protection of human health) in the context of several health crises, such as "mad cow" disease. However, at the same time, out of growing concern for animal health and animal welfare, the EU has expressed an intent to regulate pet food, an area left unregulated until now. While requirements currently are in place for labeling of packaging for animal food, including pet food,1 there is still no legislation at the EU level governing the composition of pet food packaging specifically. Nonetheless, it is useful for packaging manufacturers that conduct business with customers in the pet food industry to be aware of the regulations and directives currently in force that are applicable to pet food packaging, in a context where more specific pet food legislation will eventually be passed.
Contrary to the U.S. regulatory framework, where the definition of "food" encompasses both human and animal food,2 and pet food is governed by the same standards as human food, the EU draws a distinction between human and animal food. In the EU, Regulation (EC) No. 178/2002,3 which establishes the European Food Safety Authority (EFSA) and addresses procedures in matters of food safety, restricts the definition of "food" (or "foodstuff") to substances or products ingested by humans.4 Pet food, like any other substance or product to be used for oral feeding to animals is deemed "feed" (or "feedingstuff").5 Moreover, the definition of "food" explicitly excludes "feed."6 Consequently, EU legislation governing food packaging, such as the "Framework Directive" (89/109/EEC)7 and the "Plastics Directive" (2002/72/EC),8 which specifically govern materials and articles intended to come into contact with foodstuffs (i.e., substances or products ingested by humans), is not applicable to pet food packaging. However, in its preamble, Regulation (EC) 178/2002 makes it clear that EU food law should include requirements for feed applicable to all animals, including pets.9 Indeed, the newly created European Food Safety Authority has dedicated two of its eight scientific panels to animals: the first panel will focus on additives and products or substances used in animal feed, while the second panel will focus on animal health and welfare.
Regulation (EC) 178/2002 also lays down general feed safety requirements in its Article 15. More specifically, Article 15.1 prohibits placing on the market of feed if it is "unsafe." Article 15.2 deems feed to be "unsafe" for its intended use if it has "an adverse effect on human or animal health." Therefore, under EU law, pet food packaged in materials manufactured with components that may migrate into contacted food at a level that would have an adverse effect on the health of humans or animals when ingested is deemed to be "unsafe," and the placing on the market of such product is a violation of EU law.
With regard to the potential migration into contacted food of substances used to manufacture pet food packaging materials, packaging manufacturers are advised to ensure that their products comply with Council Directive 1999/29/EC on undesirable substances and products in animal nutrition.10 This directive identifies maximum levels of certain substances, including heavy metals (such as lead, cadmium, and mercury) and various other components, that may be present in animal feed; some of these materials may be used in the manufacture of packaging. The circulation in the European Community of pet food containing levels of listed substances that exceed the maximum content permitted under the Directive, whether the substance was originally in the feed or migrated from the package, would be a violation of the Directive. Although not currently applicable to pet food packaging, manufacturers may also look to the EU legislation relevant to human food packaging as a source of guidance in determining the substances and limitations that the EU authorities consider to be "safe" for use in packaging applications.
Beyond the general requirements above, and in the absence of more specific legislation at the EU level, pet food packaging must comply with applicable laws in the respective EU Member States where it is marketed, as confirmed in Article 15.6 of Regulation (EC) 178/2002.11 11 Therefore, pet food packaging manufacturers interested in marketing in the EU must first ensure that their product is safe for the intended use, and then ensure that it complies with any national specific requirements in place in the individual EU Member States of interest.
1See, e.g., Council Directive 79/373/EEC of 2 April 1979 on the marketing of compound feedingstuffs, OJ L 86, 6.4.1979 p. 30-37.
2"The term ''food'' means (1) articles used for food or drink for man or other animals [...]," 21 U.S.C. 321(f)
3Regulation (EC) No. 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, OJ L 31, 1.2.2002, p.1-24.
4 "For the purposes of this Regulation, 'food' (or 'foodstuff') means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans." Regulation (EC) No. 178/2002, Article 2.
5"'feed' (or 'feedingstuff') means any substance or product, including additives, whether processed, partially processed or unprocessed, intended to be used for oral feeding to animals;" Regulation (EC) No. 178/2002, Article 3.4.
6"'Food' shall not include: (a) feed;" Regulation (EC) No. 178/2002, Article 2.
7Council Directive 89/109/EEC of 21 December 1988 on the approximation of the laws of the Member States relating to materials and articles intended to come into contact with foodstuffs, OJ L 40, 11.02.1989, p.38-44.
8Commission Directive 2002/72/EC of 6 August 2002 relating to plastic materials and articles intended to come into contact with foodstuffs, OJ L 220, 15.08.2002, p. 18-58.
9"Within the context of food law it is appropriate to include requirements for feed, including its production and use where that feed is intended for food-producing animals. This is without prejudice to the similar requirements which have been applied so far and which will be applied in the future in feed legislation applicable to all animals, including pets." Regulation (EC) No. 178/2002, Whereas (7).
10Council Directive 1999/29/EC of 22 April 1999 on the undesirable substances and products in animal nutrition, OJ L 115, 4.5.1999, p. 32-46.
11 "Where there are no specific Community Provisions, feed shall be deemed to be safe when it conforms to the specific provisions of national law governing feed safety of the Member State in whose territory the feed is in circulation [...],"Regulation (EC) No. 178/2002, Article 15.6.