- François-Xavier Branthôme
The French competition authority (Autorité de la Concurrence) has fined three professional canning associations (the FIAC, the ADEPALE and the ANIA) and the can manufacturers’ trade union SNFBM for having implemented a collective strategy intended to prevent manufacturers in the sector from competing on the presence, or absence, of Bisphenol A in food containers (cans, tins, etc.).
11 companies, in their capacity as members of these organisations, have also been fined, with the cumulative amount of the fines reaching almost €20 million.
The Autorité de la concurrence has fined three professional canning associations and a can manufacturers’ trade union for having implemented practices intended to prevent competition on the presence, or absence, of Bisphenol A (BPA) in food containers, in the context of the adoption of the French law of 24 December 2012 banning the use of BPA in all food containers as of 1 January 2015. The cartel was organised during the transitional phase, during which cans with and without BPA were simultaneously placed on the market (a grace period introduced to allow stocks to be used up).
These practices, which together constitute a single, complex and continuous infringement (SCCI), were implemented from 6 October 2010 to 21 July 2015, i.e. over more than four years, and took two forms:
Preventing manufacturers from communicating on the absence of BPA in their food containers:
o the FIAC and then the ADEPALE and the ANIA informed canned food manufacturers of the importance of not competing on the presence, or absence, of BPA in their food containers;
o this collective strategy was extended upstream to can manufacturers, through the actions of the SNFBM;
o efforts were also made to extend this strategy downstream to the mass retail distribution sector, but these were unsuccessful;
o deviations from the cartel were monitored, as several players decided to communicate on the absence of BPA in their products.
Encouraging manufacturers to refuse to supply BPA-free cans before 1 January 2015 and then to refuse to stop selling cans with BPA after this date, despite the demands of the mass retail distribution sector to this effect. The FIAC and the SNFBM are the only two collective organisations implicated in this second practice and, hence, in the SCCI constituted by the two practices together.
11 companies, in their capacity as members of the above-mentioned collective organisations, and whose individual participation in the cartel was deemed to have been proven by the Autorité, have also been fined. For the most part, this individual participation took the form of attending meetings organised by their associations or trade unions, the purpose of which was anticompetitive. These companies are the canning companies Andros, Bonduelle, Charles & Alice, Cofigeo, Conserves France, D’Aucy, General Mills and Unilever, and the can suppliers Ardagh, Crown and Massilly.
The four professional organisations and 11 member companies have been fined a total of €19,553,400.
The Autorité considers the two practices constituting the SCCI to be very serious, as they meant that consumers were unable to choose BPA-free products, at a time when these products were available and when BPA was already considered dangerous to health.
Nevertheless, the Autorité departed from its notice on fines, taking into account the diversity of the entities implicated, in terms of both their economic heft and their role within the sector: on the one hand, the professional organisations sanctioned as directly responsible for the practices in question; on the other, the companies sanctioned as members of these organisations, on account of their individual participation. The Autorité considered that, in this context, applying the notice on fines would have led to disproportionate fines being imposed on the companies.
The Autorité also took into account the specific legal and regulatory framework in which the practices in question took place and the actions of the authorities vis-à-vis the players in the sector as mitigating factors.
Bisphenol A (BPA) is a synthetic chemical used in the manufacture of resins, in particular to protect the inside of metal food cans (including beverage cans), and in metal lids.
France was the first European country to tackle the issue of BPA in contact with food, banning the use of BPA in baby bottles on 1 January 2013 and then in all packaging, containers and utensils intended to come into contact with food as of 1 January 2015.
In order to allow stocks to be used up, a specific transitional arrangement was introduced by the Directorate General for Competition, Consumer Affairs and Fraud Prevention (DGCCRF). Empty containers with BPA and the food packaged in these containers, already in circulation prior to 1 January 2015, could still be sold after 1 January 2015 until stocks had been used up.
The implementation of a collective non-competition strategy covering the entire value chain
The Autorité found that the Fédération des Industries d’Aliments Conservés (FIAC) organized a cartel intended to encourage manufacturers not to compete on the presence, or absence, of BPA in their cans and to coordinate the communication aimed at consumers on this issue.
The sanctioned practices were part of an overall plan to neutralize the competitive risks arising from the introduction of BPA-free food containers on the market.
The other professional organisations concerned all avoided any competition on this selling point, which is particularly important for consumers, by contributing to at least one of the practices initiated by the FIAC.
The FIAC, the Association des Entreprises de Produits Alimentaires Elaborés (ADEPALE), the Association Nationale des Industries Alimentaires (ANIA) and the Syndicat National des Fabricants de Boîtes, Emballages et Bouchages Métalliques (SNFBM) agreed to encourage manufacturers not to compete on the presence, or absence, of BPA in their cans (first strand).
The FIAC and the SNFBM collectively encouraged manufacturers to refuse to supply BPA-free cans before 1 January 2015 and then to refuse to stop selling cans with BPA after this date, despite the demands of the mass retail distribution sector (second strand).
The Autorité considered that the two strands of the SCCI, taken together and individually, constituted a particularly serious practice, insofar as they meant that consumers were unable to choose BPA-free products, at a time when these products were available and when BPA was already considered dangerous to health.
Total fine of €19,553,400 imposed by the Autorité
Having examined the evidence in the case, the Fédération du Commerce et de la Distribution (FCD), Carrefour, Leclerc, Les Mousquetaires and Système U were cleared of any wrongdoing, given that there is no proof of their acquiescence in any of the practices constituting the SCCI organised by the FIAC with the support of the SNFBM.
The Autorité also considered that there was no evidence in the case to establish that the Centre Technique de la Conservation des Produits Agricoles (CTCPA), a public interest organisation that carries out public service missions and whose role includes conducting collective research, had played a “facilitating” role in the sanctioned practices.
With regard to the companies and associations implicated as members of professional organisations, the practices were found to be time-barred in many cases, as the companies and associations had participated for the final time before the end of 2013. The Autorité therefore cleared Alliance 7, Ball, Bel, Boissons rafraîchissantes de France, Brasseurs de France, Chancerelle, Danone, the CITPPM, Carlsberg, Coca-Cola, CCEP, the FEDALIM, the FNCL, Fleury Michon, Gendreau, Mom, Nestlé, PepsiCo, Suntory, Unijus and the UPPIA.
Some complementary data
DECISION 23-D-15 OF 29 DECEMBRE 2023, relating to practices in the sector of the manufacture and sale of foodstuffs in contact with materials that may contain or may have contained Bisphenol A: to see the full text of the decision (in French) click here.
Sources: autoritedelaconcurrence.fr, 20minutes.fr