Per- and poly-fluoroalkyl substances (“PFAS”) are a collection of over 7,000 manmade chemical compounds. PFAS have unique physical properties, including resistance to degradation and heat and ability to repel oil and water. These properties make them highly useful in a number of commercial applications, including food packaging.
While many PFAS regulations at the federal and state level are focusing on managing PFAS levels in water (as one of the most common sources of human PFAS exposure), there are also a number of state and federal regulatory initiatives that are directly targeting the manufacture and sale of PFAS-containing food packaging. Earlier this year, Vermont Senator Bernie Sanders introduced S. 3227, which is a proposed amendment to the Federal Food, Drug, and Cosmetic Act. If enacted, the law would consider PFAS contact with food as unsafe and would require that the EPA “designate all PFAS as hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act. This is a drastic step above the EPA’s current consideration of PFOS and PFOA (two of over 7,000 PFAS compounds) for this hazardous substance designation.
At the state level, in 2018, the State of Washington amended its own law regarding toxics in packaging, which included a ban on PFAS-containing food packaging to take effect by January 1, 2022 as long as the Washington Department of Ecology is able to identify a safer alternative before that date. On the east coast, the Maine Governor signed a law on June 13, 2019 that will authorize the Maine Department of Environmental Protection to issue a new rule that prohibits sales of PFAS-containing food packaging. This law will again take effect once the Maine DEP is able to identify a safer alternative. On February 26, 2020, in Massachusetts, Bill H. 3839 “An Act to Ban the Use of PFAS in Food Packaging,” was moved to the Committee on Health Care Financing. This act would ban the sale and manufacture of food packaging with intentionally added PFAS.
On January 24, 2020, Rhode Island introduced H. 7307 “An Act Relating to Health and Safety – PFAS in Food Packaging,” which would prohibit PFAS-containing food packaging starting on January 1, 2021. On March 10, 2020, the New York Senate started its third round of review of Bill S2000B “An Act to amend the environmental conservation law, in relation to the use of perfluoroalkyl and polyfluoroalkyl substances in food packaging.” This act would ban the sale of food packaging with PFAS knowingly or intentionally added by December 31, 2021.
The above represent a few of the pending and enacted state and federal regulations throughout the United States that target PFAS-containing consumer products. It is important for manufacturers to be aware of these constantly evolving regulations to make sure they are in compliance. As shown above, states are enacting regulations with different levels of stringency and various start dates for enforcement. Therefore, manufacturers with sales in multiple states must be aware of how these regulations differ and when enforcement is set to start.
Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.