PFAS Food Packaging Regulations Boil Over: Time to Develop a Compliance Plan

Forever chemicals are about to be forever regulated. With the most recent ban on per- or polyfluoroalkyl substances (PFAS) in food packaging set to go in effect in Vermont on July 1, 2023, this Holland & Knight alert focuses on the current state regulatory landscape for PFAS in food packaging. The two-sentence takeaway: Plot your PFAS compliance path now. Inaction is not a path towards compliance.

PFAS and Their Effects

The term PFAS refers to an entire family of wholly synthetic chemicals. Most state statutes and regulations that regulate the use of these substances in food packaging define PFAS broadly as any compound with at least one fully fluorinated carbon atom. Though estimates vary, as many as 12,000 unique compounds may exist within this family. The vast majority of these chemicals has not been studied, but recent research suggests that certain PFAS may cause adverse health effects in humans.

While more research is needed, some studies also suggest human exposure to PFAS comes from food packaging. Indeed, several major restaurant chains have already committed to phasing out PFAS from their food packaging. For these reasons, 19 states have either passed legislation banning PFAS in food packaging or have legislation pending that would regulate PFAS in food packaging (California, Colorado, Connecticut, Hawaii, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Washington). Where bans are not in effect or pending, some states have opted to commission research to study how PFAS attach to food and what action the state should take.

Current State Regulations on Food Packaging and Compliance Difficulties

State legislative action varies. For instance, some PFAS food packaging bans only apply to plant-based packaging, whereas others apply to any packaging that has direct contact with food. In states such as Maine, a notification period may precede any outright ban on PFAS within food. Some, but not all, states provide exemption provisions for PFAS where a less harmful chemical is unavailable to accomplish the same purpose. Yet, given the state of Washington's recent study finding four safer alternatives to PFAS in food packaging, companies may struggle to find exemptions even when available. The bottom line: Intense regulation is already here in a variety of states and imminent in others.

Finding the right compliance recipe is difficult. For starters, the limited amount of research on PFAS has practically resulted in an outright ban, regardless of a given chemical compound's properties. Although some analytical methods exist for PFAS, more development in this area is also needed. For example, one common analytical method measures the total organic fluorine within a medium as a proxy for PFAS presence. This may result in the overestimation of the presence of PFAS and therefore the potential risks. The sheer number of chemicals to consider creates both compliance and administrative enforcement difficulties, too. Maine, for instance, the sponsor of one of the most aggressive PFAS bans, has had to push back its reporting requirement deadline and seek more funding.

The statutes themselves present compliance difficulties as well. For example, several statutes apply bans only to "intentionally added" PFAS. The definition of this phrase differs across states. Some states have construed "intentionally added" to mean only if a specific characteristic is sought, or only if an intended function is sought. Other states set limits even for the incidental presence of PFAS. The vagueness of these definitions may result in differing interpretations and standards across the country. A conglomeration of states in the Northeast corridor are also working on a model PFAS bill that may result in changes to all of the existing state statutes. Monetary penalties can be $100 per violation, which, on a per-package basis, will result in hefty fines quickly. Recent remediation settlements for PFAS exposure in drinking water systems have been in the billions-of-dollars range. Given these costs, clarity on these laws and necessary compliance efforts were needed yesterday.

Proactive Compliance Actions

Companies should act now to mitigate the risk of these uncertainties. Members of the regulated community should determine where PFAS are present within their products and supply chains. Navigating proprietary and intellectual property issues through this process will likely delay it.

Start now. Once PFAS usage has been identified, ask whether alternative chemicals are available for possible use and, if not, plot out an exemption request strategy. As with many major chemical manufacturers and restaurant chains, contemplate if abandoning all PFAS use is possible. Consider assembling a compliance team to track the changing regulatory landscape or use one of the many legislation trackers publicly available. It can always be helpful to discuss the situation with in-house and outside counsel to maximize the benefits of the attorney-client relationship during the investigatory process.

Holland & Knight has published more than 50 articles on the subject of PFAS and helped a variety of clients navigate the changing regulatory landscape. Please reach out to the authors or another member of the Environmental Team for further assistance.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.