Titanium dioxide (E171) banned as an additive in foods in the EU

As of 7 February 2022, pursuant to Commission Regulation (EU) 2022/63 (the “Titanium Dioxide Regulation”)[1], titanium dioxide (E171) has been removed from Annexes II and III of Regulation (EC) No 1333/2008 (the “Additives Regulation”), which sets out the regulatory framework for the use of additives in foods in the European Union.

Accordingly, since 7 February 2022, the use of titanium dioxide (E171) as a food additive in the European Union is prohibited. However, food operators will note that the Titanium Dioxide Regulation provides for a 6 month transition period, where foods produced in accordance with the rules applicable before 7 February 2022 may continue to be placed on the market until 7 August 2022. After that date, food products may remain on the market until their date of minimum durability or ‘use by’ date.[2]

The Titanium Dioxide Regulation has been introduced following a series of  European Food Safety Authority (“EFSA”) safety assessments of the use of titanium dioxide (E171) as a food additive, including the most recent food safety assessment issued on 6 May 2021 (the “EFSA Opinion”), pursuant to which EFSA indicated that, based on is assessment of all the available evidence, a concern for genotoxicity could not be ruled out, and therefore concluded that titanium dioxide (E 171) can no longer be considered safe when used as a food additive.[3]

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The U.S. Supreme Court Reinstates Water Certification Rule, but Nationwide Permits Remain Subject to Challenge

On Wednesday April 6, 2021, in a 5-4 vote, the U.S. Supreme Court justices stayed a California district court’s October 21, 2021 decision to vacate the Section 401 Water Quality Certification Rule (401 WQC Rule).  The U.S. Environmental Protection Agency (EPA) had requested that the district court remand the rule, saying it was planning to revise the rule, which would take potentially years to finalize.  As explained in a previous post, the district court’s opinion to vacate the 401 WQC Rule initially caused the U.S. Army Corps of Engineers (Corps) to hold finalizing all permits, including nationwide permits like NWP 12, that rely on a 401 WQC waiver.  The impact caused States and industry groups considerable concern about permitting delays for a wide variety of energy and utility projects.  Consequently, the U.S. Supreme Court majority felt it appropriate to delay the decision to vacate the rule pending appellate, including U.S. Supreme Court, review.

Justice Kagan dissented and was joined by Chief Justice Roberts and Justice Sotomayor.  The dissent stated that it has been five months since the district court vacated the 401 WQC Rule, and now several States and industry groups have asked the Supreme Court to stay the district court’s opinion, alleging that they will suffer irreparable harm.  The dissent concludes the applicants have not shown that “extraordinary circumstances” exist and, therefore, the Court should not grant the emergency relief applicants sought.  Further, the dissent took aim at the Court’ so-called “shadow docket,” opining that the Court had rendered the “emergency docket not for emergencies at all.”

Meanwhile, a challenge to the NWP-12, which authorizes oil and natural gas pipeline activities, remains pending in a Montana federal court.  On April 1, 2022, an electric utility group filed a brief, opposing the challenge.  It asserted that permits like NWP 12 help streamline projects and challenging such permits could have far-reaching implications.  For example, clean energy projects often require infrastructure development, which could require a nationwide permit.  Therefore, according to the utility group, eliminating such permits could impede the feasibility of clean energy projects and slow the “essential” transition to clean energy.

Similarly, on April 5, 2022, the U.S. Chamber of Commerce (USCC) filed a brief arguing that delaying permits like NWP 12 creates an obstacle to infrastructure projects and compromises U.S. energy security.  The USCC also argue that plaintiffs’ requested relief would impact the American economy by increasing the cost of energy, such as oil and gas products.

In December, the Corps resumed issuing permits after it determined that districts could still coordinate with certifying authorities in issuing water quality certifications.

EU public consultation on Commission’s review of the RoHS Directive

The European Commission is currently seeking public comment as part of its review of the Restriction of Hazardous Substances in Electrical and Electronic Equipment Directive (Directive 2011/65/EU) (the RoHS Directive).

The aim of the RoHS Directive is to reduce the risk to human and environmental health by restricting the use of certain hazardous substances in electronics which can be substituted by safer alternatives.

This initiative to review the RoHS Directive is part of the EU’s Circular Economy Action Plan, and contributes to the Chemicals Strategy for Sustainability and Zero Pollution Action Plan, which are key deliverables under the European Green Deal.

As part of the RoHS Directive’s evaluation process, the European Commission has identified a number of issues relating to the practical operation of the RoHS Directive which this initiative will aim to address. In particular, the evaluation process reported that the RoHS Directive contains:

  • complex and impractical provisions relating to exemptions to substance restrictions;
  • an unclear process for reviewing the list of restricted substances;
  • inconsistencies with existing EU Regulations (for example the REACH Regulation and Eco-design Directive);
  • difficulties in enforcement, notably in the context of e-commerce; and
  • unclear and outdated provisions to support the circular economy.

The European Commission has proposed the following preliminary options which it is seeking input on, in order to address the issues noted above:

  • introduce new ‘soft’ measures, including updates to online FAQs to explain the interactions between the RoHS Directive and other EU legislation;
  • revise the RoHS Directive in order to (i) clarify and improve the exemption process, (ii) clarify and improve the restricted substances trigger, (iii) ensure coherence with other EU legislation, and (iv) improve implementation and enforcement;
  • transform the RoHS Directive into an EU regulation; or
  • repeal the RoHS Directive and incorporate its provisions into existing legislation.

Whilst this consultation is open to all citizens, the European Commission has flagged the following groups as the main stakeholders for the initiative: Member State authorities, business associations and companies including SMEs, non-governmental/civil society organisations, academia, individuals, workers associations and trade unions.

Submissions must be made through the European Commission’s online portal by 2 June 2022 (the online portal is available here).