States Ban PFAS in Food, Beverage Packaging
New York, California, and Washington kicked off 2023 by banning intentionally added PFAS (per- and poly-fluoroalkyl) in food and beverage packaging.
At least eight other states, including Connecticut, have bans going into effect in 2023 and 2024.
It’s only February, but we are already seeing the nationwide effects of the newly effective bans.
Even though Connecticut’s in-state ban is not effective until Dec. 31, 2023, Connecticut companies that manufacture, sell or distribute food, beverage, or product packaging that is sold or distributed in New York, California, Washington, or the other relevant states must comply with applicable state laws.
Here’s what you need to know.
PFAS refers to a family of substances also known as “forever chemicals” because they are persistent and do not readily break down in the environment.
PFAS are ubiquitous and bioaccumulate in animals and humans. They are found in many commonly encountered products, including non-stick cookware, waterproof/resistant materials, cosmetics, as well as food and water sources.
PFAS are linked to a range of health concerns, including low infant birth weight, immune system impacts, elevated cholesterol, cancer, and thyroid hormone disruption.
In recent years, the use of PFAS in food packaging has come under increased scrutiny.
For example, a recent Consumer Reports study indicated PFAS are often found in plant or paper-based food packaging to make the packaging grease- and oil-resistant.
The study also found that a number of fast food, fast casual, and grocery chains had PFAS in their food packaging.
Shortly after the report was released, separate class action lawsuits were filed against several identified companies (e.g., McDonalds, Burger King) for having PFAS in food packaging.
As of January 2023, 11 states enacted legislation banning PFAS in food packaging and five additional states are considering it.
Generally, the state laws ban the selling, manufacturing, or distributing of food packaging with “intentionally added” PFAS and one state, California, set a detection limit regardless of whether the substance is used intentionally.
There are three key factors to consider in evaluating the extent of the bans:
- Food packaging is generally defined to include products used to contain, handle, transport, store, serve, protect, and market food and beverage products (e.g., bags, containers, wrappers, tubes, cups) as well as the packaging components (e.g., blocking, seals, liners, inks, labels). In nine states, the definition is limited to material intended for direct contact with a food or beverage. The other two states, California and Minnesota, define food packaging more broadly.
- Six states are focused on food packaging made from paper, paperboard, or materials derived from plant fibers. The remaining five states regulate food packaging regardless of its composition.
- All 11 states ban intentionally added PFAS, i.e., PFAS added to food packaging to serve a specific function or provide a specific characteristic (e.g., non-stick). In addition, California’s law also bans the presence of PFAS in a product or product component at or above 100 parts per million, as measured by total organic fluorine.
Federal Regulation Lags
Despite the increased state regulatory activity regarding PFAS in food packaging, as of January 2023, there are currently no federal laws explicitly banning PFAS in food packaging intended for consumer use—although there is a narrow federal law banning PFAS in certain food packaging provided to the military.
The U.S. Food and Drug Administration—responsible for regulating chemicals in food packaging and food handling products—has historically authorized certain uses of PFAS in food contact applications, but has begun to discourage their use through a voluntary phase-out program that began in 2021.
The lack of binding federal action has led a number of states to enact individual PFAS bans on food packaging, resulting in a patchwork of regulations and increased compliance costs for retailers, manufacturers, and distributors.
Connecticut food and beverage manufacturers, including companies in the emerging cannabis space producing certain edible goods, should assess food packaging supply chains and gather more information on what PFAS may be present, and to what degree, by reviewing applicable supplier Safety Data Sheets and requesting formal assurance in the form of confidence letters or certificates of compliance from suppliers.
Notably, some states, like New York, provide a safe harbor for a food and beverage manufacturer or retailer if it has received written compliance assurances from its packaging suppliers.
Food and beverage manufacturers should expect to be asked for corollary compliance assurances from their downstream customers, vendors, and retailers.
The requirements and related issues are nuanced and evolving rapidly.
We have already seen reports of companies voluntarily recalling products until their packaging can comply with the state laws currently in effect.
Food packaging is just one of many facets of the ever-increasing regulatory burden around PFAS.
Thus, a proactive and coordinated legal and technical approach is recommended to developing an appropriate risk management plan to identify, mitigate, and manage PFAS risks associated with past, present, and future business operations.
About the authors: Andrew Davis and Alfredo Fernández are partners at Shipman & Goodwin LLP, both practicing in the firm’s national environmental practice.
For more information about Shipman’s manufacturing practice, please contact Alfredo Fernández (860.251.5353; email@example.com).
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