The nation’s largest economy is continuing efforts to ban a group of chemicals known as PFAS on Jan. 1, just three months from now.
That’s when California’s ban on the sale of non-durable food packaging in California that contains per- and polyfluoroalkyl chemicals, or PFAS, comes into effect.
However, banning PFAS in food packaging is only one component of California’s AB 1200, which was enacted in October 2021. AB 1200 also requires the replacement of PFAS in food packaging with least toxic alternative and requires disclosure of a wide range of non-PFAS chemicals in cookware.
Prohibition of PFAS in food packaging
AB 1200 prohibits the sale or distribution of plant fiber food packaging, such as take-out boxes and food wraps, if they contain PFAS that have been intentionally added or are present at or above 100 ppm .
The law goes beyond regulating the two PFASs commonly in the news, perfluorooctanoic acid, or PFOA, and perfluorooctane sulfonate, or PFOS. Its definition of “PFAS” encompasses the full range of polyfluorinated substances.
The law makes no distinction between PFAS for which available information establishes a potential for public harm and PFAS for which no data demonstrates a risk to public health.
PFAS refers to a group of over 9,000 chemicals that have been used in many products to improve desirable properties, such as water or stain resistance in clothing and carpets or, in the case food packaging, preventing sauces and oil or fat from leaking out of the packaging.
Many companies have replaced cardboard and paper packaging with closed-cell extruded polystyrene foam, for example polystyrene, and single-use plastic packaging, as they are seen as better alternatives for the environment, given the widely recognized problems with recycling plastics and polystyrene that has resulted in a glut of these materials being sent to landfills as recycling options dwindle.
To make cardboard and paper suitable for storing food products, they had to be lined with a material that would prevent liquids from penetrating the fiber packaging. Adding a liner that included PFAS seemed like the perfect solution.
Now, under the law of unintended consequences, these alternatives to plastic and polystyrene containers are themselves being criticized.
PFAS compounds have been in the news recently because some have been identified as having potential health effects, although the science of which PFAS chemicals are dangerous and at what levels is still under development.
PFAS are also known as eternal chemicals because their inert nature makes them resistant to decomposition, which means they can be found throughout the environment, including the human body.
However, long before recent concerns about their persistence and potential harm, PFAS chemicals were key ingredients in many products, and in some cases, such as fire-fighting foam and smoke suppressants, were – or are. always – mandated by the states and the federal government. regulations.
The persistence of these substances has led to pressure to regulate PFASs, in general, and to ban some of them altogether. The United States Environmental Protection Agency recently announced public health targets for certain PFAS in drinking water at levels below the current ability to detect them in the laboratory.
The EPA also announced that it is beginning the process of listing several PFAS chemicals as hazardous substances, which will have far-reaching regulatory consequences.
At least 11 other states have enacted bans or restrictions on PFAS in food packaging, most with future timelines, but California’s ban impacts the largest market. A number of other states, as well as the European Union, are considering similar bans or have laws and regulations pending or in place.
Growing public awareness and concern about PFAS and their use in food packaging is likely driving companies to find alternatives that do not contain PFAS, regardless of their regulatory status. At some point, when enough jurisdictions have bans in place, food packaging manufacturers will likely switch to PFAS-free alternatives rather than producing both.
However, in the meantime, given the global supply chain and built-in delays between manufacturing and availability at your local sandwich shop, California companies may struggle to comply with the ban on PFAS in packaging. food by January 1. .
Several major lawsuits regarding the use of food packaging containing PFAS have certainly increased the visibility of the problem and the pressure on businesses as well.
So far, these lawsuits are largely based on allegations of consumer fraud, alleging that the use of food packaging containing PFAS is inconsistent with a company’s claims to serve safe food and be environmentally conscious.
Currently, there are no legal or regulatory standards for PFAS in packaging to facilitate these types of claims. However, as various state bans come into effect, future lawsuits may pivot to assert claims based on the bans.
Replace PFAS with “the least toxic alternative”
In addition to the banning of all PFAS in food packaging by AB 1200, a manufacturer must use the least toxic alternative when replacing PFAS in food packaging to comply with the new law. This particular provision is problematic for a number of reasons.
First of all, the term “least toxic alternative” is not defined. How does a manufacturer know they are using the less toxic alternative when reformulating the liner.
Indeed, what distinguishes a reformulated food packaging product coating from a new food packaging product coating is a question that the legislation does not answer.
Second, the mandate to use the least toxic alternative is not burdened with any economic consideration. If two less toxic alternatives to PFAS are available, one of which costs 10 or even 100 times the other, the law seems to require that the selection of which alternative to use be guided exclusively by their relative toxicity without considering their cost. relative.
Information on chemicals in cookware
The other element of AB 1200 regarding the disclosure of chemicals in cookware sold or distributed in California is also worth noting, although its provisions will apply to fewer companies.
The bill requires manufacturers, broadly defined, of kitchen utensils, also broadly defined, to disclose on the product label or packaging whether the product contains one or more of the chemicals on the California list. candidate chemicals associated with the state’s Safer Consumer Products Program.
In addition, the law prohibits a cookware manufacturer from advertising that its product does not contain a particular compound when it contains other compounds of the same class, for example, by promoting its cookware as being PFOA-free if it contains other PFAS chemicals like polytetrafluoroethylene.
The cookware labeling requirements come into force on January 1, 2024, giving manufacturers a bit more time to come into compliance. However, disclosure is not limited to PFAS. There are over 1,000 candidate chemicals, so the job for manufacturers will be daunting.
Also, unlike California’s Proposition 65 warnings, which are only required to identify one of more than 1,000 Proposition 65 chemicals, AB 1200 appears to require that each candidate chemical in a cookware is identified on the product label.
In some cases, the AB 1200 and Proposition 65 warnings may be required, which means that the amount of space available on the label to describe the characteristics of any product can decrease significantly.
Unlike California’s infamous Proposition 65, which expressly allowed enforcement by private citizens, AB 1200 did not include any specific enforcement mechanism.
The default enforcement mechanism in California is its Business and Professions Code, Section 17200, which essentially prohibits doing business in California in a manner that violates any law, regulation, or ordinance, i.e. an illegal business practice. Remedies include injunctive relief and civil penalties of up to $2,500 per violation.
Enforcement action may be taken by the Attorney General, any district attorney and certain county councils, municipal attorneys and municipal prosecutors. A private citizen can also seek injunctive relief and restitution under the Unfair Competition Act, but not civil penalties.
Now and in the future
Manufacturers of paper and cardboard food packaging, and those who use these products in their businesses, may already be behind if they have not already anticipated the entry into force of this new law.
Cookware manufacturers also have little time to implement the major changes this law imposes on them.
Even if your business is not directly affected by this particular law, keep an eye out for other PFAS regulations that are sure to affect you down the road.