A coalition that decades ago fought heavy metals in food packaging is expanding its efforts, urging states from New Hampshire to California to ban “forever chemicals” in all forms of packaging.
The Toxics In Packaging Clearinghouse developed landmark legislation in 1989 that led to limits on lead, mercury, cadmium, and hexavalent chromium in food packaging in 19 states. Now, in its first major update in decades, the group is circulating draft model language for a ban on per- and polyfluoroalkyl substances (PFAS) in any concentration.
“There simply should be none in anything and the only way to guarantee that is nondetect,” said John Gilkeson, Clearinghouse board chairman who also works for the Minnesota Pollution Control Agency.
If adopted by states, the ban could affect anything from plastic wrapped around cucumbers to pizza boxes. That has drawn concerns from the chemical industry’s leading trade group.
PFAS are a family of thousands of chemicals, popular in carpeting, nonstick cookware, fast food wrappers, firefighting foam, and other products because they don’t break down in water and are stain-resistant. But the qualities that make PFAS popular in consumer goods also mean the substances have persisted in the environment, contaminating water, the food supply, and air.
“When you look across the country, there are so many facets to it,” Gilkeson said in a phone interview.
Certain forms of PFAS can accumulate in the human body, leading to higher blood pressure in pregnant women, some cancers, changes in liver enzymes, and increased cholesterol, according to the Agency for Toxic Substances and Disease Registry, which is part of Centers for Disease Control and Prevention.
First in Decades
The draft update represents the first time in more than two decades that a new chemical has been added by the Clearinghouse, which helps coordinate legislation across states so that rules are consistent, Clearinghouse Program Manager Melissa Nadeau said in a phone interview.
A final version of the legislation should be released in September. Then it will be up to the nine member and nonmember states to advance it in in their legislatures. The states are California, Connecticut, Iowa, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, and Washington.
The American Chemistry Council said it supports safe packaging but is concerned the legislation would bypass safety and packaging oversight by the U.S. Environmental Protection Agency and U.S. Food and Drug Administration. Listing an entire class of substances as a one-size-fits-all solution also threatens sound science, Council spokesman Andrew Fasoli said in an email.
“We are concerned that the proposed changes would bypass these important regulations and could have unintended consequences for product safety, packaging performance, and overall life-cycle considerations such as recycling and greenhouse gas reductions,” Fasoli wrote.
If industry wanted to challenge the PFAS packaging rules, it would likely be based on the law’s risk assessment models that are considered to include the substances, said Jeffrey Karp, an environmental attorney with Sullivan & Worcester LLP in Washington, D.C. It would also involve challenging any testing protocols, detection limits, and sample accuracy, he said.
“The challenges will be on toxicological assessment deficiencies,” Karp said in a phone interview.
3M Co. and DuPont were the original companies developing and producing PFAS, dating to the 1940s. The chemicals have been used by hundreds of companies such as Wolverine World Wide Inc. and W. L. Gore & Associates Inc. to make thousands of products, including semiconductors, sticky notes, and shoes.
Follows Washington, New York, California
Several states are already focused on PFAS in food packaging.
Washington state is evaluating the existence of safer alternatives to PFAS in packaging. If other options are designated, a ban would kick in by 2022 or 2023 and be the first of its kind in the nation.
Last week, New York’s legislature sent a bill to Gov. Andrew Cuomo (D) that would prohibit PFAS in packaging that comes in direct contact with food. San Francisco and other California cities have banned PFAS in single-use bowls, plates, and utensils, and the state this year has been looking at PFAS in food packaging, with a workshop planned Aug. 31.
Representatives from the member states of Iowa, Minnesota, and Rhode Island said they were reviewing or tracking the model legislation. New Hampshire said it was too soon to comment.
New York’s Department of Environmental Conservation said in a statement the agency would “continue to monitor the progress on the drafting of the model rule and evaluate next steps to prevent potential PFAS exposure.”
New York state Assemblyman Steve Englebright (D), who chairs the Standing Committee on Environmental Conservation, said he hoped the U.S. EPA would address PFAS in packaging nationally. But a rule in New York, one of the more populous states, could have impact beyond the state’s borders, he said.
A potential New York rule “will move the industry to try to accommodate making sure that what they have will work in New York, and then they’ll distribute it to other states,” Englebright said in an interview. “So it will have an effect that is ultimately going to be a marketplace adjustment that will be nationwide.”
California said it supports the Clearinghouse, but its membership in the group didn’t obligate action on the model legislation.
“If legislation is introduced in California based on the changes to the model language, we will review and carefully consider any proposed revisions and the implications on our program,” California Department of Toxic Substances Control spokesman Sanford Nax said in an email.
Washington state said it had no plans to push adoption of the model legislation as it focuses on safer alternatives in food packaging.
“Ecology does not have a position on the draft model legislation and we are not supporting or planning to advance the draft toxics in packaging model legislation,” Ken Zarker, manager for the Pollution Prevention and Regulatory Assistance Section at the Washington State Department of Ecology, said in an email.
The model legislation would also ban phthalates—which make plastics more flexible—over certain concentrations, and make it easier to add substances of concern without needing new legislative approval.
Gilkeson said the member states would decide the best time to take action, depending on the political landscape and other policy issues, including addressing the coronavirus pandemic.
“I think ultimately that every state that is in this will do it, but maybe not immediately,” he said.
—With assistance from Adrianne Appel in Boston, Keshia Clukey in Albany, N.Y., and Stephen Joyce in Chicago.
To see the latest updates on state-level PFAS regulations and legislation, check out Bloomberg Law’s PFAS State Activity Tracker here.