Let's Bring in the Ox and Put the Rat Out to Pasture: Food Packaging Year in Review

Now that we have entered the Year of the Ox and have completed the Year of the Rat, arguably one of the most challenging years we have all experienced, it's a good time to reflect on the developments in China's food packaging regime. Despite the challenges, the Chinese authorities managed to make good progress by continuing to accept and clear food-contact petitions filed by industry, announcing the publication of several important National Food Safety (GB) food packaging standards, and promoting green product certification. The following is a summary of what we have seen in 2020 and what we can likely expect to see in 2021.

GB Food Packaging Standards

In 2020, the most notable progress in the formulation of standards was the publication for public comment of some long-awaited GB food packaging standards. Specifically, on October 15, China's National Health Commission (NHC) published on its website four draft GB food packaging standards for public comment, namely:[1]

National Food Safety Standard - Food-Contact Use Composite Materials and Articles
National Food Safety Standard - Printing Inks for Use in Food-Contact Materials and Articles
National Food Safety Standard - Food-Contact Use Paper and Paperboard Materials and Articles
National Food Safety Standard - Food-Contact Use Bamboo and Wood Materials and Articles

More details on these new draft GB food packaging standards can be found in K&H's China Regulatory Matters (CRM) newsletter published on October 19, 2020. The comment period for these drafts ended on November 30.

New Regulation on Food-Related Products

On July 31, 2020, China's State Administration for Market Regulation (SAMR) released the draft Rules for the Supervision and Administration of the Quality and Safety of Food-Related Products for public comment.[2] The draft Rules are applicable to the manufacture and sale of all food-related products in China, which capture food-contact materials and articles. While there have been various regulations and standards related to food-related products in China, the Rules, once finalized, will become the first comprehensive implementing regulation under the overarching Food Safety Law (FSL) specially targeted food-related products since SAMR was formed in 2018.

The draft Rules explicitly prohibit not only food-related products that do not comply with laws, regulations, and food safety standards, but those that should also be phased out under national industrial policies.[3] Notably, manufacturers are required by the draft Rules to make a commitment to the local authority on product quality and safety. For example, the commitment must include a statement that the manufactured product does not use illegal raw materials or additives.

The draft Rules make clear that, for a food-related product sold for daily use by consumers, the manufacturer must implement a recall upon learning that the product presents unreasonable risks to personal safety per SAMR's existing Provisional Regulation on Consumer Product Recall.

Overall, the promulgation of the Rules will serve to support the government supervision of food-related products. While the draft Rules still lack details, some of the requirements have more severe consequences. For example, the Rules propose a fine for non-compliant labeling up to 30% of the total value of the goods, whereas the fine under the FSL for non-compliant food labeling is up to 10% of the value of the goods.

Evaluation of Green Plastic Products

As part of a unified national system for the standardization, certification, and marking of "green products," at the end of 2020, SAMR released the second List of Evaluation Standards for Green Products,[4] which designates the GB/T 37866-2019 Standard on Green Product Evaluation - Plastic Products[5] as the evaluation standard on plastic products, including food-contact plastic products, for green product certification purposes.

GB/T 37866-2019 defines "green plastic product" as a product that meets the requirements for environmental protection, is harmless or less harmful to the ecological environment and human health, has low energy consumption, and is of high quality in the entire life cycle. The basic requirements for the manufacturer of a green plastic product captures pollutant discharge, pollutant control, management system, etc. In addition, the Standard imposes various evaluation parameters on green plastic products that may be different from China's GB food packaging standards. For example, the overall migration limit (OML) under the Standard is no more than 5 mg/dm2, whereas the OML limit for food-contact plastic articles under the GB 4806.7-2016 Standard is no more than 10 mg/dm2.

Although green product certification is voluntary, certification may be a valuable option for manufacturers who want to promote the marketing of their products in China by following the trend in China's industry policy toward green products.

Petitions

In 2020, NHC continued to accept and review petitions for food-contact substances; however, the number of petitions accepted by NHC was 41, a decrease from 49 in 2019. There were 36 substances that passed the review of the expert panel in 2020 (16 fewer than in 2019), including 7 new additives,12 new resins, and 17 substances with expanded use permissions. Petition filings were likely down in 2020 due to the impact of the pandemic, especially in the early part of the year. However, compared with 41 approvals in 2019, in 2020, NHC officially approved a total of 53 food-contact substances through its Announcements No.4,[6] No.6,[7] No.8,[8] and No.9[9] of 2020. Among the approved products, 11 are new additives, 20 are new resins, and 22 are food-contact substances with expanded use permissions. This signifies that the rapid recovery from the pandemic allowed the Chinese government to continue to actively review and approve food-contact petitions, which is a positive signal to companies looking to clear new substances in China.

Outlook

In the year of the Ox, we anticipate that the Chinese government will continue to formulate and revise more GB food packaging standards and may indeed publish some for comment, e.g., the Plastics Standard (which may consolidate the existing Plastics Resin Standard and Plastics Articles Standard) and the revised Migration Testing Standard. Further, the standards that have completed soliciting public comment may enter the final approval stage or the authority may seek further public opinions after revisions. For example, the Adhesives Standard is likely to be published for further comment, whereas the Composite Materials Standard and the Bamboo/Wood Standard may be finalized in 2021. Although there is no certainty at this moment, the development will undoubtedly promote the improvement of China's food packaging standard system and hopefully provide better guidance for industry compliance.

Furthermore, we expect that the Chinese government will continue to place a strong emphasis on the environment and sustainable development in relation to food packaging materials. At the same time, industry should also pay attention to the changes in China's industrial policies which are expected to impose more stringent restrictions on the use of certain plastics products. On the other hand, the green product certification mentioned above is in line with China's movement to promote a more environment-friendly economy, which may be utilized by industry to explore "greener" business opportunities in China.

We will continue to keep you updated on the latest developments in China's food packaging regulations. In the meantime, if you need any assistance, please do not hesitate to contact David Ettinger (ettinger@khlaw.com), Chen Hu (hu@khlaw.com), Eric Gu (gu@khlaw.com), or your existing contact at Keller and Heckman.

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[1] See http://www.nhc.gov.cn/sps/s7891/202010/3dbf276c3c134ffc8efef71b37a932a2.shtml
[2] See http://www.chinalaw.gov.cn/government_public/content/2020-07/31/657_3253529.html
[3] For example, the 2019 edition of the Guiding Catalogue of Industry Restructuring lists disposable plastic foam dinnerware as products that should be phased out. More recently, the Chinese government also banned the use of more plastic products, such as non-degradable disposable plastic dinnerware used in the catering service industry in many urban areas.
[4] See http://gkml.samr.gov.cn/nsjg/bzjss/202012/t20201221_324526.html
[5] See http://openstd.samr.gov.cn/bzgk/gb/newGbInfo?hcno=FEB603EB088CF5977D5C9E220BD2D43E
[6] See http://www.nhc.gov.cn/sps/s7890/202006/d8e8073a2f064faf8496fea654835784.shtml
[7] See http://www.nhc.gov.cn/sps/s7890/202008/093a12a711a04ff98bfd2b10be90f2db.shtml
[8] See http://www.nhc.gov.cn/sps/spgg/202011/afc24240eb494466932e6e1ca1cb51ab.shtml
[9] See http://www.nhc.gov.cn/sps/s7892/202101/59f6380209494ea6b67a49648e59fd84.shtml