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PFAS Update: State Regulation of PFAS in Food Packaging - April 2023
Apr 13, 2023This blog was originally published in April 2023. Visit our up-to-date blog on PFAS in food packaging: state-by-state regulations >
In the absence of comprehensive federal regulation of PFAS in food packaging, states are dishing out their own laws. Thus far, eleven states have enacted laws concerning PFAS substances in food containers and packaging materials (“Food Packaging”), and there are proposed laws currently pending in nine other states. These laws are intended to address concerns that storing food in Food Packaging which contains PFAS compounds may result in increased 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 “some grease-resistant paper, fast food containers/wrappers, microwave popcorn bags, pizza boxes, and candy wrappers.”
State Food Packaging Laws
In response to this perceived health risk, states have enacted and proposed a variety of different laws to curtail the use of PFAS in food packaging. In terms of the type of regulatory approach, states have generally adopted either a safer alternatives framework, or a prohibition on intentionally added PFAS. With respect to the scope of “food packaging” that is subject to the state laws, some states have limited the definition to plant or fiber-based food packaging, while other states have included all food packaging.
The one constant in the variety of regulatory approaches seems to be the incredibly broad definition of PFAS, which is universally “fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” This map and the following chart provide a more detailed analysis of each state’s regulatory approach, and is current as of April 11, 2023.
Enacted Law - no intentionally added PFAS | |
proposed Law - no intentionally added PFAS | |
proposed Law - Safer Alternatives Analysis | |
Enacted Law - Safer Alternatives Analysis | |
Timing
With respect to enacted laws, states have established different deadlines. Some have already become effective, and others will go into effect in the future. This timeline visually demonstrates the compliance schedule for various states.
- New York - December 31, 2023
- California - January 1, 2023
- Washington - February 1, 2023
- Vermont - July 1, 2023
- Colorado, Connecticut, Maryland, Minnesota, Rhode Island - January 1, 2024
- Hawaii - December 31, 2024
- Maine - January 1, 2030
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. The obvious first step is to determine if your business manufactures, distributes, or sells any Food Packaging products containing intentionally added PFAS materials. But that question can be more difficult to answer than it initially appears, so here are a few fundamental questions to consider as you conduct 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, regardless of whether any PFAS was intentionally added.
If any of the food packaging that you either manufacture or source contains intentionally added PFAS the next step is to evaluate how and when reformulation might be possible. In addition, any replacement chemistry should be evaluated to determine whether it is in fact a safer alternative to the PFAS chemistry.
The point being that the road to evaluating and addressing compliance issues can be a long one, and with several laws already in effect it is important for impacted industries to focus on this regulatory risk
Conclusion
While the FDA may take further action in this area, states have sent a clear and – generally – consistent message that intentionally added PFAS in food packaging will no longer be allowed in major markets across the country.
If you have a question about how to identify, manage or address PFAS risk in food packaging, please contact Tom Lee, John Kindschuh, Brandon Neuschafer, Bryan Keyt or any other member of our PFAS team at Bryan Cave Leighton Paisner LLP.
Related Practice Areas
PFAS Team
Environment
