Bisphenol A is a chemical product which is considered an endocrine disruptor and, for that reason, has been banned from the food industry since 2015 by the French Food Safety Agency (FSA). Bisphenol A is, however, still legally used in other countries (including the UK and other EU Member States).
The French Competition Authority (FCA) has issued last week a Statement of Objections (SO, which is effectively a “charge sheet” against suspected cartel participants) to over a hundred companies and trade associations for alleged collusion regarding the unlawful and continued use of Bisphenol A in food packaging. The FCA’s allegations are that these companies colluded in not informing their respective customers of the presence of this banned chemical in food packaging pre-2015.
This FCA’s announcement is of interest for the following reasons:
- This appears to be one of (if not the) largest cartels ever suspected by the FCA – with potentially more than a hundred cartel participants. It is however somewhat surprising, for reasons of procedural efficiency, that the FCA is proposing to keep such a long list of SO addressees instead of focusing on the largest undertakings and ring leaders involved. In principle, if the FCA’s investigation is successful, it could lead to numerous follow-on claims for damages by private parties against the 100+ undertakings.
- The FCA’s allegations relate to a new type of cartel, which raises the question of whether the FCA has the power to investigate an alleged (collective) breach of FSA regulations – even if the FCA’s investigation does not go further than establishing an infringement of Article 101 TFEU/L420-1 of the French Commercial Code (which prohibit anticompetitive agreements). At time of writing, it is unclear if other legal consequences are and/or will be faced by the 100+ addressees of the SO, and how any such other proceedings will articulate with the FCA’s without breaching the ne bis in idem principle (which restricts the possibility of a defendant being prosecuted more than once on the basis of the same facts).
- The FCA’s investigation comes as a stark reminder that antitrust/competition rules forbid not only classic price-fixing agreements, but also all types of collusion between competitors as regards any parameters of competition (which can be environmental, health-related, etc.). Companies should therefore be well advised to consult with antitrust/competition lawyers to factor in the risk of antitrust investigations when agreeing to any standards, in particular in the context of trade associations (as seems to be the case in the Bisphenol A investigation).
Our Antitrust/Competition Team in Paris will keep abreast of this important development for the Food and Drink industry in France. Please be in touch if you need any clarification and/or information as the FCA proceedings unfold.