Per- and polyfluroalkyl substances (PFAS) are a group of 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 consumer product applications including food packaging.  Research shows that some PFAS (e.g., PFOA and PFOS) may be linked to certain health effects.  Accordingly, regulatory bodies, as well as the public, are increasing their scrutiny of the potential presence of PFAS in consumer products, especially in food.  As of today, seven states including California, New York, Maine, Vermont, Washington, Connecticut, and Minnesota have adopted legislation banning the use of PFAS in food packaging.  At the federal level, FDA entered into an agreement with PFAS manfuacturers over the voluntary “phase-out” of certain PFAS by Jan 2024.  On October 18, 2021, the White House also published the government-wide efforts in protecting U.S. consumers from PFAS led by eight federal agencies including the EPA, FDA, and USDA.  We briefly summarize the existing federal and state legal and regulatory framework on the PFAS “phase-out” from food packaging.  Food companies that currently use PFAS-containing food packaging should work closely with their suppliers to ensure the transition timeline is in compliance with the applicable federal and state requirements. 

State Efforts on PFAS “Phase-out”

As of today, there are a total of seven states including California, New York, Maine, Vermont, Washington, Connecticut, and Minnesota that have adopted laws to ban the use of PFAS in food packaging.  New York’s law, the soonest to take effect starting December 31, 2022, would prohibit anyone from distributing, selling, or offering for sale in New York food packaging containing PFAS as intentionally added chemicals.  As summarized below, the laws in the other six states contain similar language and would ban the use of “intentionally introduced/added” PFAS in “food packaging” or “food packages.”  Notably, for California, in addition to “intentionally introduced,” if the presence of PFAS in the food packaging is at or above 100 parts per million (ppm), as measured in total organic fluorine, the ban would also apply even when the PFAS are not “intentionally introduced/added.” 

We also would like to note the term “food packaging” or “food package” is defined differently among the seven states.  For example, in California, the term “food packaging” is defined as “a nondurable package, packaging component, or food service ware that is intended to contain, serve, store, handle, protect, or market food, foodstuffs, or beverages, and is comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers.”  While the California definition specifies the “food packaging” subject to the state ban is essentially made with paper or paperboard, it is unclear whether the ban is limited to the packaging materials in direct contact with food, or would also cover outer food packaging that is not in direct contact with food.  On the other hand, New York defines the term “food packaging” as “a package or packaging component that is intended for direct food contact and is comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers.”  The New York definition would limit the state ban to packaging materials made from or substantially from paper or paperboard intended for direct food contact. 

For your easy reference, the key provisions of these seven state laws, along with their effective dates, are summarized below.

• California (effective January 1, 2023)¹

  • “Food packaging” means a nondurable package, packaging component, or food service ware that is intended to contain, serve, store, handle, protect, or market food, foodstuffs, or beverages, and is comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers. “Food packaging” includes food or beverage containers, take-out food containers, unit product boxes, liners, wrappers, serving vessels, eating utensils, straws, food boxes, and disposable plates, bowls, or trays.

  • No person shall distribute, sell, or offer for sale in the state any food packaging that contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS including:

    • (A) PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.

OR

• • • (B) The presence of PFAS in a product or product component at or above 100 parts per million, as measured in total organic fluorine.

• New York (effective December 31, 2022)²

  • "Food packaging" means a package or packaging component that is intended for direct food contact and is comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers.

  • No person shall distribute, sell or offer for sale in this state food packaging containing perfluoroalkyl and polyfluoroalkyl (PFAS) substances as intentionally added chemicals.

• Maine (effective January 1, 2022 or 2 years following the date of a “safer alternative” finding, whichever is later³)⁴

  • "Food package" means a package that is designed for direct food contact. "Food package" includes, but is not limited to, a food or beverage product that is contained in a food package or to which a food package is applied, a packaging component of a food package and plastic disposable gloves used in commercial or institutional food service.

  • In accordance with the requirements of this subsection, the department may by rule prohibit a manufacturer, supplier or distributor from offering for sale or for promotional purposes in the State a food package to which PFAS have been intentionally introduced in any amount greater than an incidental presence.

• Vermont (effective July 1, 2023)⁵

  • “Food package” or “food packaging” means a package or packaging component that is intended for direct food contact.

  • A manufacturer, supplier, or distributor shall not manufacture, sell, offer for sale, distribute for sale, or distribute for use in this State a food package to which PFAS have been intentionally added and are present in any amount.

• Washington (effective February 2023 for four types of food packaging categories)⁶

  • With respect to the four food packaging categories identified: (1) wraps and liners (wax-coated options), (2) plates (clay-coated and reusable options), (3) food boats (clay-coated and reusable options), and (4) pizza boxes (uncoated options)—effective February 2023.

  • "Food package" means a package or packaging component that is intended for direct food contact and is comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers.

  • No person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this state food packaging to which PFAS chemicals have been intentionally added in any amount.

• Connecticut (effective December 31, 2023)⁷

  • "Food packaging" means any package or packaging component that is applied to or in direct contact with any food or beverage. 

  • No food package to which PFAS has been intentionally introduced during manufacturing or distribution in any amount shall be offered for sale or for promotional purposes in this state by its manufacturer or distributor.

• Minnesota (effective January 1, 2024)⁸

  • "Food package" means a container applied to or providing a means to market, protect, handle, deliver, serve, contain, or store a food or beverage.  Food package includes:

    • a unit package, an intermediate package, and a shipping container;

    • unsealed receptacles, such as carrying cases, crates, cups, plates, bowls, pails, rigid foil and other trays, wrappers and wrapping films, bags, and tubs; and

    • an individual assembled part of a food package, such as any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks, and labels.

  • No person shall manufacture or knowingly sell, offer for sale, distribute for sale, distribute, or offer for use in Minnesota a food package that contains intentionally added PFAS.  

Federal Updates in PFAS “Phase-out”

At the federal level, FDA phased out the use of the long-chain PFAS including PFOA and PFOS in November 2016 resulting in the prohibition of using PFOA and PFOS in food contact applications in the United States.⁹ On July 31, 2020, FDA announced an agreement with manufacturers of PFAS used in food packaging to voluntarily phase-out their sales of certain short-chain PFAS (6:2FTOH) used in food contact substances in the United States over the course of three years, beginning in January 2021.¹⁰ After the phase-out period (ending January 2024), manufacturers will no longer sell food contact substances made with short-chain (6:2FTOH) PFAS.  FDA estimates that it may take up to 18 months to exhaust existing stocks of paper products containing the PFAS food contact substances from the market. 

On October 18, 2021, the Biden-Harris Administration published a fact sheet on the government-wide comprehensive approach in addressing PFAS.¹¹ We summarize below the efforts led by the EPA, FDA, and USDA.      

• EPA is launching a new PFAS Roadmap that will guide the agency’s current and planned activities in 2021-2024 to research, restrict, and remediate harmful PFAS.  Actions include a new national testing strategy to accelerate research and regulatory development, a proposal to designate certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and actions to broaden and accelerate the cleanup of PFAS.  In February 2021, EPA also published a final determination to regulate PFOA and PFOS while also evaluating additional PFAS and considering regulatory actions to address groups of PFAS.

• FDA will continue to expand its testing of the food supply to significantly advance its work to estimate dietary exposure to PFAS from food.  Over the next three years, FDA will proactively engage with and continue to support states when suspected areas of PFAS contamination may impact food and expand its PFAS analysis method development.  In the coming months, this will include announcing additional testing results from the general food supply and targeted testing of seafood.  FDA will also report on the verification process for the 3-year phase out of sales of certain PFAS from food contact uses, following agreements reached with certain manufacturers in 2020.

• USDA is supporting research on PFAS in the food system and taking action to prevent and address contamination.  USDA’s Agricultural Research Service researchers are investigating the causes and implications of PFAS in the food system. USDA will also continue to support extramural research on environmental contaminants including PFAS, with a focus on PFAS in the environment and food supply, as well as animal and human health.  USDA’s Food Safety and Inspection Service has developed and is deploying analytical methods for testing for PFAS in meat and poultry products.

Next steps

While there is still around a year before the New York and California PFAS bans would take effect, we encourage food companies to review food packaging materials, and particularly for those that are made from plant fibers (i.e., paper and paperboards), for the use and potential presence of PFAS.  If the presence of PFAS is expected, a food company should ask suppliers for the PFAS “phase-out” timeline to ensure the transition is in compliance with all applicable federal and state laws and regulations. 

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

References

1 California Assembly Bill No. 1200, available at: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB1200.

2 New York, S08817, available at: Bill Search and Legislative Information | New York State Assembly (nyassembly.gov)

3 No “safe alternative” finding has been made as of today.  

4 Maine, Public Law c. 277, available at: Toxics in Food Packaging Program, Maine DEP.

5 Vermont, S.20 (Act 36), available at: https://legislature.vermont.gov/Documents/2022/Docs/ACTS/ACT036/ACT036%20As%20Enacted.pdf

6 Washington, RCW 70A.222.070, available at: RCW 70A.222.070: Prohibition on the manufacture, sale, or distribution of certain food packaging—Safer alternatives assessment by department of ecology—Publication of findings—Report to legislature—Prohibition effective date contingent on findings. (wa.gov) 

7 Connecticut, Act No. 21-191, available at: https://www.cga.ct.gov/2021/ACT/PA/PDF/2021PA-00191-R00SB-00837-PA.PDF

8 Minnesota, SF 20, available at: https://www.revisor.mn.gov/bills/text.php?number=SF20&version=1&session=ls92&session_year=2021&session_number=1&format=pdf 

9 See 81 Fed. Reg. 5 (January 4, 2016) and 81 Fed. Reg. 83672 (November 22, 2016); see also Market Phase-Out and Revocation of Authorization of Long-Chain PFAS (last updated October 20, 2020) https://www.fda.gov/food/chemicals/authorized-uses-pfas-food-contact-applications#5fbc0e4aded19.

10 FDA Announces voluntary agreement with manufacturers to phase out certain short-chain PFAS used in food packaging (July 31, 2020) https://www.fda.gov/news-events/press-announcements/fda-announces-voluntary-agreement-manufacturers-phase-out-certain-short-chain-pfas-used-food. 

11 The White House, Fact Sheet: Biden-Harris Administration Launches Plan to Combat PFAS Pollution (October 18, 2021) https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/18/fact-sheet-biden-harris-administration-launches-plan-to-combat-pfas-pollution/. 

Authored by Martin Hahn, Elizabeth Fawell, and Xin Tao.