The European General Court (ECG) has determined that the European Commission (EC) erred in removing the antibacterial chemical 2,4,4’-trcihloro- 2’-hydroxydiphenyl ether (triclosan) from the list of additives that may be used to make plastic materials and other articles that come into contact with foods. Case T-262/10, Microban Int’l Ltd. v. EC (ECG, decided October 25, 2011). The court first determined that the EC’s action constituted a regulatory act of direct concern to the applicants, companies that make the additive. The court then ruled both that the EC based its decision on the wrong law and failed to follow the correct procedures in removing triclosan from the list.
The court noted that the chemical was previously included on the provisional list of additives which can continue to be used subject to national law on the basis of a European Food Safety Authority determination in 2004 that “although triclosan was a substance for which an acceptable or tolerable daily intake could not be established, its use could none the less be accepted.” Apparently, the EC later decided not to include the chemical on the list of allowable food-contact chemicals and removed it from the “provisional” use list simply because a manufacturer withdrew its application for the authorization of triclosan’s use. According to the court, the withdrawal of an application is not a sufficient basis for not including or removing a substance from the food additive lists.