PFAS Update: State Regulation of PFAS in Food Packaging - April 2022

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.

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.