PFAS generally refers to a family of substances commonly known as "forever chemicals" because the chemicals do not readily break down in the environment and are bio-accumulative. PFAS can be found in many products, including non-stick cookware, cosmetics, and products advertised as waterproof or water resistant. PFAS are also commonly used in the food industry to treat paper products to make them heat, oil, grease, and water resistant.
Given their potential contact with consumable food, the use of PFAS in food packaging has recently faced heightened scrutiny. As of May 2023, twelve states, including New York, California, Washington, Vermont, Connecticut, Colorado, Maryland, Minnesota, Rhode Island, Hawaii, Maine, and Oregon, have enacted legislation/regulations restricting PFAS in food packaging. Generally, the state laws/regulations prohibit the selling, manufacturing, or distributing of food packaging with "intentionally added" PFAS, but each State law varies in notable ways. For example, California's law also sets a detection limit of 100 ppm as measured in total organic fluorine, no matter if the substance is used intentionally.1 Other states, such as Washington, only ban PFAS in food packaging when a safer alternative is known, such as in wraps, liners, plates, food boats, and pizza boxes.2 The various state laws also differ in how they define "food packaging," and what notifications they require manufacturers to provide to state regulators and customers.
The enacted PFAS restrictions also become effective at different times. The laws and regulations currently in effect are California's (January 1, 2023), New York's (December 31, 2022), and Washington's (February 1, 2023). Vermont's will become effective July 1, 2023, and six more state laws will become effective December 31, 2023 or January 1, 2024. This means that food manufacturers are already or will shortly be responsible for ensuring compliance of their products that are sold, manufactured, or distributed to these states.
Several more states are considering their own laws/regulations, and a national bill banning intentionally added PFAS in food packaging was also under consideration at one point. In addition, there have already been lawsuits filed against food manufacturers related to the PFAS content in their food packaging. For example, in February 2023, a New York consumer filed a proposed class action against the maker of Kerrygold butter, alleging that packaging claims that Kerrygold products contain "pure Irish butter" are misleading because they contain PFAS, which are synthetic additives.3
In sum, the push to regulate PFAS in food packaging is just beginning. It is important that manufacturers and distributors of food packaging understand their obligations under the patchwork of state laws/regulations. Taft's environmental team is prepared to help.
Footnotes
1. California Assembly Bill No. 1200.
2. Washington State Legislature RCW 70A.222.070, and the Safer Alternatives Analysis Report.
3. Winans v. Ornua Foods N. Am. Inc., No. 23-01198 (E.D.N.Y., filed February 14, 2023).
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