In recent months, a variety of state legislatures have passed laws that restrict or regulate packaging, including that used for food and beverages. One set of laws concerns extended producer responsibility (EPR) programs that seek to place the burden of managing packaging waste on producers, rather than on local governments and consumers. The other focuses on per- and polyfluoroalkyl substances (PFAS) in food packaging, and US EPA has also issued a proposed PFAS rule.

EXTENDED PRODUCER RESPONSIBILITY (EPR) LAWS

Maine and Oregon have each enacted an EPR statute in the past six weeks. The laws impose fees on producers of products that use paper and plastic packaging materials, requiring producers to pay fees that are proportional to the amount of packaging material they introduce into the state. Both laws will use a producer stewardship organization (“PSO”) or producer responsibility organization (“PRO”) concept to manage collection of fees and facilitate the collection and recycling of the waste packaging with local governments. Ultimately, the states aim to incentivize more recycled content, increased recyclability, reduction of packaging per unit, less waste, and consideration of life cycle environmental impacts.

Each of the new laws contains substantial detail that companies should carefully review, but key points of the states’ laws include:

• Definition of Producer – Both laws define a “producer” as either a brand owner or, if the brand owner has no U.S. presence, the company importing the product into the state. Oregon also considers licensees of brands to be producers and considers producers, packagers/shippers, and distributors who remotely sell into the state.
• Exemptions – Both laws have exemptions for beverage containers, and each law has additional exemptions that may be useful to food and beverage companies. Both laws also authorize the relevant regulatory agency – Maine Department of Environmental Protection and Oregon Department of Environmental Quality, respectively – to create additional exemptions by regulation.
• Timelines – The Maine law requires regulations to be proposed by December 31, 2023. The Oregon law requires PSO plans to be submitted by March 31, 2024, with implementation to commence no later than July 1, 2025.
• Implementing Regulations – Both laws authorize the relevant environmental regulatory agency to issue rules to implement the new laws. The Maine Department of Environmental Protection has indicated that it will commence rulemaking by the end of 2021, well ahead of the statutory deadline.
• Reporting, Recordkeeping, and Oversight – The laws include annual reporting, record retention, and related obligations for producers and the PSOs/PROs.

While Maine and Oregon are the first states to enact EPR laws, similar bills are in the queue in several other states. Massachusetts’ and New York’s bills had the most recent activity, but legislative committees in Hawaii, Maryland, Vermont, and New Jersey are also considering EPR action.

PER- AND POLYFLUOROALKYL SUBSTANCES (PFAS) DEVELOPMENTS

In recent months, Connecticut and Vermont have passed laws that ban the use of PFAS in food packaging. Both laws apply to manufacturers and distributors of food packaging to which PFAS has been intentionally introduced. Vermont adds suppliers to the list of regulated entities. The laws take effect in 2023, on July 1 in Vermont and on December 31 in Connecticut. These states join Washington, Maine, and New York in imposing food packaging PFAS bans.

Another PFAS-related development of note is the proposed U.S. EPA regulation to require reporting of information on identity, structure, categories of use, quantities manufactured (including imported) or processed for each category of use, byproducts, environmental and health effects studies and data, numbers of individuals exposed, and disposal. Food and beverage manufacturers will be impacted if they import containers, packaging, or other products for use in their operations.

Given the limited supply chain transparency for chemical content in articles such as containers and packaging, inquiries to satisfy the reporting requirement will be time-consuming and inefficient for many companies. EPA proposes to use the “known to or reasonably ascertainable” knowledge standard to determine whether a reporter’s information-gathering is sufficient. Unlike previous guidance for this standard, which does not require customer surveys, the proposal suggests the need for inquiries to other entities:

This standard may also entail inquiries outside the organization to fill gaps in the submitter’s knowledge. Such activities may, though not necessarily, include phone calls or email inquiries to upstream suppliers or downstream users or employees or other agents of the manufacturer, including persons involved in the research and development, import or production, or marketing of the PFAS. Examples of types of information that are considered to be in a manufacturer’s possession or control, or that a reasonable person similarly situated might be expected to possess, control, or know include: files maintained by the manufacturer such as marketing studies, sales reports, or customer surveys; information contained in standard references showing use information or concentrations of chemical substances in mixtures, such as a Safety Data Sheet or a supplier notification; and information from the Chemical Abstracts Service (CAS) or from Dun & Bradstreet (D-U-N-S). This information may also include knowledge gained through discussions, conferences, and technical publications.

In the proposed rule, EPA also advised importers who do not obtain knowledge of PFAS presence in the goods they import to document due diligence efforts. Based on the description above, those efforts will likely be significant. Comments on EPA’s proposed rule are due by September 27, 2021.