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States are getting in line to dish out food-packaging related PFAS regulations. So far, seven states have enacted regulations concerning PFAS substances in food packaging containers and materials (“Food Packaging”).  Eight other states have proposed Food Packaging regulations which are currently pending. 

These regulations are intended to address public and agency concerns that storing food in Food Packaging containing PFAS compounds may result in ingestion of those PFAS compounds.  According to the Agency for Toxic Substances and Disease Registry (“ATSDR”), commonly cited examples of Food Packaging that have historically contained PFAS compounds include certain pizza boxes, microwave popcorn bags, fast food containers, and candy wrappers

This Client Alert provides an overview of the federal and state regulatory landscape for PFAS in Food Packaging to help impacted businesses evaluate their compliance obligations and potential risk.

I. Federal Actions

Although federal action on this issue has been limited to date, the Food and Drug Administration (“FDA”) has taken some steps to limit PFAS use in Food Packaging, and more action is anticipated as part of the Biden administration’s PFAS plan.

The only federal prohibition regarding the use of PFAS compounds in Food Packaging is the FDA’s 2016 action to eliminate two long-chain perfluorinated compounds from use in food packaging.   Although previously approved, the FDA removed approval for two of the compounds, not based on evidence of environmental or human health concerns, but because the sole U.S. manufacturer of those compounds notified FDA that it had abandoned the production of these two compounds, thereby rendering their continued approval for use unnecessary.  On July 31, 2020, the FDA announced a voluntary phase-out of certain type of short-chain PFAS compound in Food Packaging, but has not taken any further steps to ban or rescind approvals for the use of any other PFAS compounds. 

Additionally, the FDA issued an August 5, 2021 letter to manufacturers and distributors of fluorinated polyethylene food contact articles “as a reminder that only certain fluorinated polyethylene containers are authorized for food contact use.”  These containers – also referred to as high-density polyethylene (“HDPE”) containers – have been identified by EPA as a source of PFAS contamination of certain pesticides, and are reportedly used during food product manufacturing.

Outside of the agency context, the bi-partisan Keep Food Containers Safe from PFAS Act of 2021 was proposed in both the House of Representatives and the Senate.  The bill states that “[t]he introduction into interstate commerce of food packaging containing intentionally added PFAS” should be prohibited in cookware or containers beginning on January 1, 2024.  The bill was introduced in both houses of Congress in late 2021, so it is unclear when, if at all, this bill will become law.

II. State Food Packaging Regulations

In the absence of a blanket federal prohibition on the presence of PFAS compounds in Food Packaging products, numerous states have started to enact and propose regulations of their own.

A map showing the states that have enacted or proposed regulations regarding Food Packaging is below, along with a detailed chart providing more information discussing the specific provisions of those regulations.  Because the regulation of Food Packaging is developing, it is important to note that this client alert reflects the status of state regulations in Food Packaging as of April 5, 2022.

State

Food Packaging Description

Regulatory Status

Details

California

Beginning on January 1, 2023, no person shall distribute or sell any food packaging that either has:  1) PFAS that are intentionally added to a product and that have a functional or technical effect in the product; or 2) more than 100 ppm of PFAS substances as measured in total organic fluorine.  Additionally, there are labelling and reporting requirements for certain manufacturers of cookware products.   “Cookware” is defined as including “pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls, and cooking utensils.”

Enacted

AB 1200

Colorado

Beginning on January 1, 2024, no person shall sell or distribute any product in the food packaging category if the product contains intentionally added PFAS substances.

Proposed

HB22-1345

Connecticut

After December 31, 2023, no food package to which PFAS substances are intentionally introduced in any amount during manufacturing or distribution shall be offered for sale or for promotional purposes by its manufacturer or distributor.

Enacted

Public Act No. 21-191

Hawaii

Beginning on July 1, 2023, it is unlawful to manufacture, sell, or distribute any food packaging (specifically wraps and liners, plates, food boats, and pizza boxes) to which PFAS chemicals have been intentionally introduced in any amount. 

Proposed

HB 1644 HD1

Iowa

Prohibits the manufacture, sale, and distribution of food packaging where PFAS substances are intentionally added in any amount, subject to an exception.  Specifically, it does not apply to food packaging that was either imported or otherwise acquired prior to January 1, 2022.   The Iowa Department of Public Health (“DPH”) will conduct a one-year study investigating PFAS substances in food packaging and will attempt to identify safer alternative food packaging materials.  DPH must submit a report presenting its findings by December 31, 2022.

Proposed

HF 293 and SF 19

Maine

The Maine Department of Environmental Protection (“DEP”) is permitted by statute to enact rules that prohibit a manufacturer, supplier, or distributor from offering for sale or for promotional purposes a food package to which PFAS substances have been intentionally introduced in any amount greater than an incidental presence.  “Incidental presence” is defined by the statute as “the presence of a regulated metal or other regulated chemical as an unintended or undesired ingredient of a package or packaging component.” 

The DEP must determine that safer alternatives to the use of PFAS substances are available.  If applicable, any prohibition for a product containing PFAS substances may not take effect until January 1, 2022, or two years following the date when DEP determines that a safer alternative is available.  DEP has not yet issued its final determination as it is still gathering information.

Also, beginning on January 1, 2030, a person may not sell or distribute any product that contains intentionally added PFAS, unless the department has determined by rule that the use of PFAS in the product is of unavoidable use.

Enacted

32 M.S.R.A. 26-A.1733  and

LD 1503

Maryland

After January 1, 2024, a manufacturer or distributor may not manufacture, distribute, or sell a food package to which PFAS substances have been intentionally added. 

Proposed

HB 0275

Massachusetts

No person or entity shall manufacture, sell, or distribute food packaging to which PFAS substances have been intentionally added in any amount.

Proposed

S 1494

Michigan

Beginning on January 1, 2023, a person shall not manufacture, sell, or distribute food packaging to which PFAS substances have been intentionally added in any amount greater than an incidental presence.  "Incidental presence" is defined in the proposed bill as “the presence of a chemical as an unintended or undesired ingredient.”

Also, beginning on January 1, 2024, a manufacturer, producer, packager, importer, supplier, or distributor of a PFAS food packaging component shall either: (1) provide a warning on the product label; or (2) provide a written notice to the authorized agent for a retail seller that sells the product.

Proposed

HB 5250 and SB 217

Minnesota

Beginning on January 1, 2024, no person shall manufacture, sell, distribute, or offer for use a food package that contains intentionally added PFAS.  “Intentionally added" is defined by the law as “PFAS deliberately added during the manufacture of a product where the continued presence of PFAS is desired in the final package or packaging component to perform a specific function.”

Enacted

SF 20

New York

Beginning on December 31, 2022, no person shall distribute or sell food packaging containing PFAS substances as intentionally added chemicals. “Intentionally added chemical” is defined by a separate statute as a “chemical in a product that serves an intended function in the product component.”    

Enacted

S 8817 and 37-0901 (Definitions)

Pennsylvania

Beginning on July 1, 2022, no person shall distribute, sell, or offer for sale food packaging containing PFAS substances in any amount.

Proposed

HB 1965

Rhode Island

Beginning on January 1, 2023, no person may manufacture, sell, or distribute food packaging to which PFAS substances have been intentionally added in any amount.

Proposed

S 2049

Vermont

Beginning on July 1, 2023, a manufacturer, supplier, or distributor shall not manufacture, sell, or distribute a food package to which PFAS substances have been intentionally added and are present in any amount.

Enacted

S 20

Washington

Beginning on February 1, 2023, no person may manufacture, sell, or distribute food packaging to which PFAS chemicals have been intentionally added in any amount.  This prohibition may not take effect until the Department of Ecology identifies that safer alternatives are available. 

The Department of Ecology published its findings in a report, dated February 2021, specifically stating that:  (1) six chemical alternatives were less hazardous than PFAS; (2) one chemical alternative was more hazardous than PFAS; and (3) the data was insufficient to evaluate three chemical alternatives.

Enacted

RCW 70A.222.070

and Safer Alternatives Analysis Report

 

III. Compliance Steps and Risk Mitigation for Businesses

The following are some initial steps that you can take to evaluate and mitigate your potential regulatory risk based on your manufacturing, distribution, or sale of Food Packaging that contains PFAS compounds:

  • Evaluation. The obvious first step is to determine if your business manufactures, distributes, or sells any Food Packaging products containing PFAS materials.  But that question can be more difficult to answer than it initially appears, so here are a few fundamental questions that can guide your investigation:  
    • If you manufacture Food Packaging, do you intentionally add or introduce PFAS substances in any amount?
      • Answering this question may require discussions with raw materials vendors, and an examination of your manufacturing process and process equipment, including potential PFAS contamination of process water if any is used as part of your operations.
    • Does your business sell, distribute, or offer for sale or use materials to which PFAS substances have been intentionally added?
      • Once again, the answer to this question will likely rely on discussions with your suppliers and vendors.
      • Companies should also review their purchase agreements and contracts with suppliers and customers to understand who is liable in the event that there is a sale of non-compliant products.
      • Note that in California an additional threshold is whether your Food Packaging contains more than 100 ppm of total organic fluorine.
  • Alternates Analysis. Not surprisingly, there is a new industry trend towards “PFAS free” Food Packaging materials. 
    • If your business determines that any of your Food Packaging products contain PFAS, you should consider whether there are viable alternatives available.
    • In addition to the state-funded studies discussed above, there are resources available which discuss alternatives to PFAS materials in food packaging, such as the publications by The Organization for Economic Cooperation and Development and the Clean Production Action

IV. Conclusion

As of the date of this publication, seven states have enacted various types of prohibitions on PFAS in Food Packaging and eight states have proposed similar legislation, indicating a clear regulatory trend toward the removal of PFAS from Food Packaging.  Importantly, the federal government has also indicated that it will take further action in this area, suggesting that this is an area of importance, and probable regulatory expansion, in the near future. 

If you have a question about how to manage PFAS risk in Food Packaging, please contact Tom Lee, John Kindschuh, Elyse Voyen, or any other member of our PFAS team at Bryan Cave Leighton Paisner LLP.

This document provides a general summary and is for information/educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice. Specific legal advice should always be sought before taking or refraining from taking any action.