In our article published in the last edition of this Gazette, we discussed early-to-mid-2021 developments concerning extended producer responsibility programs and regulation of per- and polyfluoroalkyl substances (PFAS) in packaging and noted that such trends were likely to continue. In the fourth quarter of 2021 and after, legislators and regulators introduced or enacted additional requirements and restrictions impacting food and beverage products. The continuation of these trends means that food and beverage companies will need to put plans in place for compliance deadlines starting later in 2022 and continuing into 2023.

STATE RESTRICTIONS OR BANS ON PFAS IN FOOD PACKAGING

Why do we continue to focus on PFAS? The answer to this question is simple: The majority of legislation concerning food packaging passed and being introduced at the state level concerns PFAS. Indeed, more than 100 bills concerning PFAS were introduced in 2021, many of which impacted food packaging. Recent activity on the federal level adds to the queue of pending restrictions and bans.

Planning for 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. Additional states’ laws will trigger bans if the regulatory agencies complete their work to identify safer alternatives to PFAS in food packaging. Similar bills are pending in roughly 10 additional states.

Federal Ban Introduced in Congress

On November 4, 2021, Senators Hassan and Wood and Representatives Dingell and Young introduced the Keep Food Containers Safe from PFAS Act. Lest the catchy title leave any doubt, the bill is unusually concise, stating that the Federal Food, Drug, and Cosmetic Act should include as a prohibited act as of January 1, 2024, the “introduction or delivery for introduction into interstate commerce of food packaging containing intentionally added PFAS.” The brevity of the bill’s definition of PFAS – all per- or polyfluoroalkyl substances with at least one fully fluorinated atom – belies its scope.

PROPOSITION 65 UPDATES

Developments from California under Proposition 65 also require a closer look in 2022. These updates include a revised version of the proposed changes to the short-form warning, a proposed alternative warning for acrylamide in foods, and new chemical listings.

Revised Proposal for Short-Form Warning Changes

In January 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) proposed changes to the safe harbor warning regulations that would severely restrict and change the availability of the short-form warning. In response to comments from stakeholders, OEHHA revised its proposal on December 17, 2021. The revised version would increase from five to 12 square inches the maximum label size for which short-form warnings are permitted, and it would also allow companies that may use short-form warnings on product labels to use the same warnings in catalogs and on websites. The revised proposal does not alter the proposed change to require short-form warnings to mirror the long-form version by naming at least one listed substance per relevant endpoint of cancer or reproductive harm.

Proposed Alternative Warning for Acrylamide in Foods

The safe harbor warning regulations already include a warning specific to foods. It includes the word “WARNING” and the relevant version of the text:

Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food.

OEHHA has now proposed adding an alternative warning option for exposures to acrylamide in food, which would include the phrase “CALIFORNIA WARNING” and the text:

Consuming this product can expose you to acrylamide, a probable human carcinogen formed in some foods during cooking or processing at high temperatures. Many factors affect your cancer risk, including the frequency and amount of the chemical consumed. For more information including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide.

In the administrative record, OEHHA candidly discussed that a focus of the proposal is to respond to litigation in which a federal district court has enjoined certain enforcement of the current warning for acrylamide, noting that the “purpose of the proposed regulation is to provide an additional optional safe harbor warning for businesses that addresses the District Court’s concerns as well as public health concerns.”

OEHHA Adds Additional PFAS Listings

In other PFAS news, OEHHA finalized listings of several PFAS. On December 24, 2021, OEHHA listed perfluorooctane sulfonic acid (PFOS) “and its salts and transformation and degradation precursors” as carcinogens under Proposition 65. A listing of perfluorononanoic acid (PFNA) and its salts as reproductive toxins followed on December 31, 2021. Companies have one year to determine whether to add warnings for these PFAS or to alter current warnings. The PFOS listing presents a particular challenge, as OEHHA has not defined what it means by “transformation and degradation precursors.” If no additional guidance is provided in 2022, the ambiguity in this listing may provide fertile ground for private-party enforcement.

WHAT ELSE ARE WE WATCHING IN 2022?

To round out our tour of the legislative and regulatory landscape facing companies in 2022, here are a few additional areas to watch:

Phenolic Compounds – A draft report to the legislature from the Washington State Department of Ecology recommends restrictions on or reporting for bisphenols and alkylphenol ethoxylates in food packaging, including restricting most bisphenols in drink can linings and requiring reporting for most bisphenols in food can linings. These recommendations follow findings by the Department that it has identified “safer, feasible and available alternatives” for these uses.

Recyclability of Plastics – Success in passing SB343 in California concerning restrictions on making recyclability claims for products or packaging is encouraging advocates to continue pushing for elimination of substances that they assert inhibit a circular economy for plastics.