Read the full article by Keller and Heckman LLP (National Law Review)

“As concern about per- and polyfluoroalkyl substances (PFASs) continues to grow due, in part, to their prevalence in the environment, actions to limit or ban their use often extends to food packaging. For example, the use of PFASs in food packaging for military meals ready-to-eat (MREs) is prohibited after October 1, 2021. Additionally, several bills have been introduced in Congress that include bans on use of PFASs in food packaging and containers. The most recent, S.3227, “Prevent Future American Sickness Act,” was introduced by Senator Bernie Sanders (I-Vt.) last month.

S.3227 would amend the Federal Food, Drug, and Cosmetic Act to deem any PFAS used as a food contact substance unsafe, in addition to requiring the Environmental Protection Agency to designate PFASs as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. The PFAS ban would become effective January 1, 2022.

With respect to the ban on PFASs in MREs, the National Defense Authorization Act for Fiscal Year 2020 (S.1790), which became a public law on December 20, 2019 (P.L. No. 116-92), prohibits the use of PFASs in food packaging for military meals ready-to-eat (MREs) after October 1, 2021. The full text of S.1790 can be found here.

U.S. states are also concerned about PFASs in food packaging. Washington state amended its Toxics in Packaging Law in 2018 to include a ban on PFASs in food packaging made from paper and paperboard, effective in January 2022, but only if the state’s Department of Ecology identifies safer alternatives by conducting an alternatives assessment prior to that date. Maine’s Toxic chemicals in packaging law, signed by the governor on June 13, 2019, authorizes the Maine Department of Environmental Protection to issue a rule prohibiting the sale of food packaging containing intentionally added PFASs, provided the Department first determines that a safer alternative is available. And California is considering prioritizing PFASs in food packaging under its Green Chemistry/Safer Consumer Products legislation.

More state bans could be forthcoming. A number of states have recently introduced legislation that include bans on PFASs in food packaging. Descriptions of bills introduced or ones that have progressed since the beginning of the year are included below.

Arizona: SB 1468, “Food Packaging: Prohibitions,” was introduced February 3. The legislation would ban the sale of food packages to which PFASs have been intentionally added, effective January 1, 2023.  The bill also includes a certificate of compliance requirement.

Connecticut: H.B. 5291, “An Act Limiting the Use of Perfluoroalkyl and Polyfluoroalkyl Substances and Expanded Polystyrene in Food Packaging,” was introduced February 24. It would prohibit the manufacture and sale of food packaging containing PFASs or expanded polystyrene, effective January 2022, if a “reasonable alternative” is available. The Connecticut Department of Public Health (DPH) would be required to issue a report by January 2021 that includes a list of any food packaging products that contain an intentionally added PFASs or expanded polystyrene. The Public Health Committee held a public hearing on the bill on March 9, 2020.

Illinois: SB 3154, “PFAS Reduction Act,” was introduced February 6. It includes a ban on the manufacture and sale of food packaging that contains intentionally added PFASs, effective January 1, 2021…”