In our article published in the last edition of this Gazette, we discussed late 2021 to early 2022 developments concerning extended producer responsibility (EPR) programs and the regulation of per- and polyfluoroalkyl substances (PFAS) in packaging and noted that such trends were likely to continue. In 2022 to date, legislators and regulators continue to introduce or enact additional requirements and restrictions impacting food and beverage products. The continuation of these trends means that food and beverage companies need to put plans in place for imminent compliance deadlines starting within the next few months.
EXTENDED PRODUCER RESPONSIBILITY
In recent months, both California and Colorado have enacted EPR laws for packaging and paper products. Under both laws, regulated producers can include manufacturers, brand owners, importers and distributors.
California — Senate Bill 54, signed into law on June 30, requires producers of single-use and disposable packaging to form a producer responsibility organization (PRO) to address the law’s requirements, including plan submission, annual reporting, source reduction and fees (including collection of a $500 million annual fee). The law sets a 2032 target date for all packaging to be either recyclable or compostable, as well as a 25 percent cut in plastic packaging production and a 65 percent recycling-after-use rate. In support of the 2032 deadline, the law sets interim recycling rate deadlines of 2028 (30 percent) and 2030 (40 percent). Producers must join the PRO by January 1, 2024. PRO nonparticipants must demonstrate their individual compliance by 2027 or be prohibited from selling covered material in California. The law also authorizes penalties of up to $50,000 per day per violation.
Colorado — HB 1355, enacted on June 2, requires producers to establish by June 1, 2023, a nonprofit PRO to manage statewide recycling of packaging and paper products. The PRO’s responsibilities will include commissioning a third-party assessment of the state’s recycling needs, submitting an implementation plan and complying with various reporting obligations. The PRO will collect dues from producers to cover costs of the state recycling program. Producers are prohibited from recouping such fees through point-of-sale or point-of-collection charges to consumers.
Joining Maine and Oregon, whose legislatures passed EPR laws in 2021, California and Colorado are on the front wave of states considering such laws. Similar bills in fifteen additional states failed this year or are not expected to advance by year-end; however, many will likely reemerge in 2023.
STATE RESTRICTIONS OR BANS ON PFAS IN FOOD PACKAGING
As we noted in the last edition, the majority of legislation concerning food packaging passed and being introduced at the state level concerns PFAS. Recent developments include the following:
Washington — In May, the Washington Department of Ecology identified in a report to the Legislature that safer alternatives to PFAS are available for open-top and closed containers, flat serviceware, bags, sleeves, and bowls. Under state law, the submission of the report to the Legislature starts a two-year clock before PFAS are prohibited in such materials. The department will commence enforcement of restrictions cited in an earlier report for wraps and liners, plates, food boats, and pizza boxes in February 2023.
Hawaii — Act 152, enacted on June 27, prohibits the manufacture, sale, distribution, or offers for sale or distribution of any food packaging containing intentionally added PFAS as of December 31, 2024. This prohibition specifically applies to wraps, liners, plates, food boats and pizza boxes.
Rhode Island — Under H7438, signed into law on June 29, food packaging cannot include intentionally added PFAS as of January 1, 2024. No substances introduced to replace PFAS may create any hazard greater than that posed by PFAS.
This brings the total of states with bans on PFAS in food packaging to 11: California, Colorado, Connecticut, Hawaii, Maryland, Maine, Minnesota, New York, Rhode Island, Vermont and Washington.
State bans and related requirements
Compliance deadlines for already enacted laws start January 1, 2023, in several states, including California, New York and Maine. Such deadlines address reporting of PFAS use, cessation of PFAS use or both.
PROPOSITION 65 UPDATES
Developments in California under Proposition 65 have continued in 2022. These updates include a pending restart of the proposed changes to the short-form warning and a proposed modified warning for glyphosate.
California withdraws (temporarily) its revised proposal for short-form warning changes
In December 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) revised proposed changes to the safe harbor warning regulations that would severely restrict and change the availability of the short-form warning. However, because the OEHHA did not complete the rulemaking within the statutory deadline, the agency withdrew the proposal in May. Lest anyone think the proposal is gone for good, the OEHHA also noted that it “intends to restart the rulemaking” in the next several weeks.
Modified warning for glyphosate
The OEHHA recently issued a notice proposing changes to the warning text for glyphosate, an herbicide detected in various foods. The revised language would modify the text concerning the disagreement among regulatory agencies concerning whether glyphosate is carcinogenic, limiting the cited agencies to the International Agency for Research on Cancer and the U.S. Environmental Protection Agency.
WHAT ELSE ARE WE WATCHING?
Phthalates — Maine’s prohibition on phthalates in food packaging, active as of July 1, requires removal of noncompliant products from sales locations.
“Food packaging chemicals of high concern” — Following similar approaches for chemicals in children’s products, Maine has finalized its list of food packaging chemicals of high concern. The list includes bisphenols, 4-octyl phenol, octamethyl cyclotetrasilozane (D4), toluene, styrene, benzene, methylenedianiline, parabens, benzophenone and nonylphenol.
