PFAS and phthalates added to Model Toxics in Packaging Legislation as regulated substances

Although the change has no immediate legal effect, if any of the 19 states that have implemented previous versions of the Model Legislation adopt the updated provisions, it could provide the adopting state with enforcement power to take action against manufacturers, suppliers, and product users (e.g., food and beverage manufacturers) of packaging material containing PFAS or phthalates.² 

Background on PFAS and phthalates

As we have previously explained,³ PFAS are a group of human-made chemicals that have been used in a range of consumer products for decades. Known for being resistant to grease, oil, water, and heat, they are often used in stain-and water-resistant fabrics, paints, and fire-fighting foams, as well as in limited, authorized uses in food contact substances. In general, PFAS do not break down easily and are persistent in the environment. 

Research shows that some PFAS may be linked to certain health effects. Accordingly, federal and state regulators, as well as the public, are increasing their scrutiny of the potential presence of PFAS in consumer products, especially in food and food packaging. Currently, Maine, New York, and Washington have adopted laws aiming to limit the manufacture, distribution, or sale of food packaging containing intentionally added PFAS. None of these state laws against PFAS are effective as of today.⁴

Phthalates are a group of chemicals often used to make plastics more flexible and harder to break. Like PFAS, they are used in hundreds of products, including polyvinyl chloride plastics, which are used to make products such as plastic packaging film. People are exposed to phthalates by eating and drinking foods that have been in contact with containers and products containing the chemical. Although some types of phthalates have affected the reproductive system of laboratory animals, according to the CDC the human health effects from exposure to phthalates are unknown.⁵

TPCH and new amendments to Model Legislation

The TPCH maintains the Model Legislation and coordinates implementation of state legislation based on the Model Legislation on behalf of its member states. The Model Legislation was first developed in 1989 with the purpose of reducing the amount of heavy metals and other chemicals in packaging and packaging components sold or distributed throughout the U.S.⁶ TPCH aims to promote the Model Legislation and consistency in its implementation across states. Although the Model Legislation on its own has no legal effect, the previous version was adopted in some form by 19 states. Enforcement of the Model Legislation is at the discretion of each individual state. However, member states may share violation information with the TPCH and with one another, in part so that enforcement action may be pursued in a consistent manner to the extent possible. 

The 2021 update expands the list of substances regulated under the Model Legislation to include PFAS and phthalates. The term “PFAS” is defined broadly in the Model Legislation to include all members of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. In theory, all PFAS molecules, regardless of their chain length, that meet the chemical definition can be considered covered. Like PFAS, the Model Legislation defines “phthalates” broadly to mean “all members of the class of organic chemicals that are esters of phthalic acid and that contain 2 carbon chains located in the ortho position.” 

The 2021 amendments prohibit manufacturers, suppliers, and distributors from offering for sale or promotional purposes packages or packaging components to which phthalates or PFAS have been intentionally added. Although the Model Legislation allows for a 100 parts per million (ppm) limit for the incidental presence of phthalates, there is no such minimum allowable threshold for the incidental presence of PFAS, which must be non-detectable in the packaging under the Model Legislation. Moreover, although the Model Legislation provides exemptions (e.g., when a heavy metal has been added to a package in order to comply with the health or safety requirement of state or federal law or if there is no feasible alternative), they do not appear to apply to PFAS or phthalates, as the exemptions that are currently contained in the Model Legislation are specifically limited to packages or packaging components containing heavy metals (i.e., lead, cadmium, mercury, or hexavalent chromium). Finally, the updated Model Legislation also creates new criteria for identifying additional packaging chemicals of high concern.

Implications for the food and beverage industry

The updated Model Legislation eventually may be adopted in the 19 member states as is or with various amendments. If so, this would greatly expand the number of states that regulate the use of PFAS and phthalates in food and beverage packaging. Most significantly, once adopted, it can equip the states with enforcement power to take actions against companies for manufacturing, supplying, or using packaging materials made or containing PFAS and phthalates. It is at the discretion of each state whether it will adopt the updated Model Legislation and whether it will make any amendments to the Model Legislation. Further, the timing of when this may occur is unclear. Nonetheless, the updates to the Model Legislation represent another step in the regulation of PFAS and phthalates in food packaging and would provide a clear path forward for members states to regulate these chemicals in packaging should they choose to do so.

Next steps    

We will continue to monitor the legal and regulatory developments related to food packaging and the use of PFAS and phthalates at the state and federal level. If you have any questions in the meantime, please don’t hesitate to contact us.    

References 

1    Model Toxics in Packaging Legislation (February 2021) available at https://toxicsinpackaging.org/model-legislation/model/. 

2    The states that have adopted the Model Legislation include: California, Connecticut, Florida, Georgia, Illinois, Iowa, Maryland, Maine, Minnesota, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

3    Hogan Lovells Blog, A Snapshot of the Changing Regulatory Framework for PFAS (3 Dec. 2020) available at https://www.engage.hoganlovells.com/knowledgeservices/analysis/a-snapshot-of-the-changing-regulatory-framework-for-pfas.

4    As we are publishing this client alert, it has come to our attention that Washington has completed the required “safer alternatives” assessment for four types of food packaging applications – food boats, pizza boxes, plates, and wraps and liners.  This assessment triggers the two-year effective date with respect to those four applications, meaning the law will be effective in February 2023. We will discuss this development in a separate client alert. 

5    Centers for Disease Control and Prevention, Phthalates Fact Sheet (7 April 2017), available at  https://www.cdc.gov/biomonitoring/Phthalates_FactSheet.html. 

6    With respect to heavy metals, the Model Legislation prohibits the intentional introduction of heavy metals to the package or packaging components and also limits the sum of lead, cadmium, mercury, and hexavalent chromium that is incidentally present in packages and packaging components to 100 ppm or 0.01 percent by weight.

Authored by Elizabeth Fawell, Xin Tao, and Anneke Altieri.