Question 

Does the recent French ban on titanium dioxide as a food additive, in Article 53 of the LOI n° 2018-938 of 30 October 2018, include the use of titanium dioxide as a colorant for nonfood contact materials such as external ink pigments?

Answer 

Recently, France passed the Order of 17 April 2019, which suspends the placing on the market of food containing titanium dioxide food additive which implements Article 53 of French Law number 2018-938 of 30 October 2018. The Order states that the placing on the market of food containing titanium dioxide food additive (E 171) is suspended for one year from 1 January 2020 (the entry into force date of the Order). From the text of the Order, as well as the recitals (referring to the possible negative effects deriving from the use of titanium dioxide as a food additive), it appears that the intent of the Order is only targeting food in which titanium dioxide is intentionally used as a food additive, rather than other potential sources of titanium dioxide that could end up in food.

‘Food additive’ is defined under EU Regulation (EC) No. 1333/2008 on food additives as “any substance not normally consumed as a food in itself and not normally used as a characteristic ingredient of food, whether or not it has nutritive value, the intentional addition of which to food for a technological purpose in the manufacture, processing, preparation, treatment, packaging, transport or storage of such food results, or may be reasonably expected to result, in it or its by-products becoming directly or indirectly a component of such foods”. (our emphasis)

The Order is based on Article L521-17 of the French Consumer Code provides that in cases of serious or immediate danger, the Minister in charge of consumer affairs or other relevant Ministers could, inter alia, suspend the manufacture, import, export and placing on the market of a product by passing an Order (Arrêté). The suspension cannot exceed one year and it is renewable.