The restriction on PFAS in food-contact packaging has applied since 12 August 2026. The Commission's interpretative guidance clarifies which packaging produced before that date may still be marketed. Its reading leaves out a common situation: sales packaging that the food manufacturer bought empty and fills afterwards.
A restriction applicable from 12 August 2026
Regulation (EU) 2025/40 on packaging and packaging waste entered into force on 11 February 2025 and has applied since 12 August 2026. From that date, Article 5(5) prohibits placing on the market food-contact packaging containing per- and polyfluorinated alkyl substances (PFAS) at or above three limit values: 25 ppb for any PFAS measured by targeted analysis; 250 ppb for the sum of PFAS; and 50 ppm for total PFAS, including polymeric PFAS. The prohibition applies to the extent that such packaging is not already prohibited under another Union legal act.
To interpret this and other provisions, the Commission approved on 30 March 2026 a draft guidance document, accompanied by a set of frequently asked questions, and formally adopted it on 5 June 2026 [C(2026) 3702 final]. The final text was published as the Commission Notice — Guidance document for Regulation (EU) 2025/40 on packaging and packaging waste (OJ C/2026/3084, 10 June 2026). Its section 5 deals specifically with PFAS and the use of existing stocks.
How compliance is checked
There is not yet a harmonised method for analysing PFAS in food-contact packaging. The guidance recommends a tiered approach. The first step is to quantify total fluorine: if it is below 50 mg/kg, the sample may be considered compliant. Only if that value is exceeded does the analysis move on to determining whether the fluorine is organic and, ultimately, to a total oxidisable precursor assay. The point that matters for operators is that, according to the Commission, on the evidence currently available, every sample compliant with the first test is also compliant with the other two. In practice, total fluorine analysis is the first and, in most cases, sufficient line of verification.
The general rule: what is already on the market may stay there
The Regulation does not provide for a sell-off period. That does not mean that all packaging manufactured before 12 August must be withdrawn. Recital 14 applies the usual logic of Union product legislation: packaging is placed on the market when it is first made available in the Union. Packaging already placed on the market before the date of application and held in the stocks of distributors, retailers or wholesalers therefore does not have to meet the new requirements.
The guidance confirms this rule for PFAS. Packaging placed on the market before 12 August 2026 may remain on it without having to be withdrawn. Packaging placed on the market afterwards must comply with the limits, with no exception for packaging containing recycled material. For imported packaging, the relevant moment is release for free circulation.
The Commission's reading: sales packaging is placed on the market when it is filled
The decisive question is therefore when placing on the market occurs. According to the guidance, sales packaging and grouped packaging intended to come into contact with food are, as a rule, placed on the market when they are filled. The reason given is that final processing steps, such as sealing, may affect the conformity of the packaging. Transport and service packaging, by contrast, are placed on the market empty.
The practical consequence is clear. The protected stocks are those of product already packed and in the distribution chain. Empty sales packaging that a food manufacturer acquired before August and fills afterwards would not be covered: on the Commission's reading, it is placed on the market when it is filled, and at that moment it must already meet the PFAS limits.
A debatable interpretation
The reading is not free from difficulty. Article 3(1), point (10), defines placing on the market as “the first making available of packaging, whether empty or with a product, on the Union market”. The guidance itself recalls, following the ‘Blue Guide’ on the implementation of EU product rules, that placing on the market takes place when there is an offer or an agreement to transfer ownership or possession once the manufacturing stage has been completed. It even accepts that a manufacturer could make empty packaging available through a mere transfer of possession. The supply of empty packaging by the converter to the packer fits that description, in principle.
The Commission's solution rests on the concept of manufacturer. For sales packaging, the manufacturer for the purposes of the Regulation is normally whoever carries out the final steps and fills it, and there is only one manufacturer in the whole chain. But the justification invoked — that sealing may affect conformity — loses force in relation to a compositional characteristic of the material such as PFAS content, which filling is hardly likely to alter. The guidance itself states that it does not replace, add to or amend the Regulation and that a binding interpretation is reserved to the Court of Justice. Even so, enforcement authorities can be expected to follow it.
The EU declaration of conformity, also required from August
PFAS are not the only immediate obligation. Since 12 August 2026, all packaging placed on the market must have undergone the conformity assessment procedure of Article 38 and Annex VII, and must be supported by technical documentation and by an EU declaration of conformity drawn up in accordance with Article 39. Here again the guidance is decisive for the food sector. If the manufacturer of sales packaging is normally whoever fills it, it is the food business operator who must draw up the declaration and who bears legal responsibility for its content, on the basis of the information and documentation that its suppliers are required to provide (Article 16(1)). Receiving a certificate from the supplier is therefore not enough: the operator must obtain, and keep, the documentation that allows it to declare conformity. The exception is micro-enterprises that own the brand and source from a supplier in the same Member State; in that case, the supplier is the manufacturer.
What to do now
Prudence suggests treating stored empty sales packaging as subject to the PFAS limits and verifying its conformity before filling it, for which total fluorine analysis is the most direct route. It is also advisable to document the date of placing on the market of batches packed before 12 August, which are the ones covered, and to review with packaging suppliers the documentation needed to draw up the declaration of conformity.
It should also be borne in mind that verification of the limits falls to the market surveillance authorities under Regulation (EU) 2019/1020, without prejudice to official controls on food contact materials under Regulation (EU) 2017/625. The same packaging may be checked from two different administrative fronts.
One question remains open, which the Regulation does not resolve and which the guidance answers only in non-binding terms. Can an administrative interpretation shift the moment of placing on the market away from the legal definition, precisely in the case where that difference decides whether existing stocks can be used at all?
Javier Gómez Sanz is the founder and director of Food Tech Legal. Comments on this analysis may be sent to editorial@foodtechlegal.com. Enquiries about a specific product or case are handled through the quote form. The original Spanish version of this analysis is available here.