The regulatory environment and trends in the manufacturing industry for food-contact materials are constantly evolving. Mitzi Ng Clark, Partner at Keller and Heckman LLP, sits down to discuss the challenges and innovations in the manufacturing of these plastics, with a focus on state regulations and their impact.
Challenges and Trends in Manufacturing
State laws banning or restricting various chemicals—such as per and polyfluoroalkyl substances (PFAS), bisphenol A (BPA), etc.—in food packaging are inconsistent, resulting in major challenges for manufacturers of food-contact plastics. An example is state laws impacting PFAS in food-contact materials (FCMs). PFAS are a diverse group of synthetic chemicals with strong carbon-fluorine bonds that are chemically inert and resistant to high temperatures. They have been used in a wide variety of products, including fire extinguishing foam, stain-resistant fabrics, personal care products, and food-contact products. Food-contact uses include non-stick pans and on paper or paperboard—such as paper wrappers for hamburgers and microwave popcorn bags—to prevent grease from going through them.
• According to the U.S. Food and Drug Administration (FDA) (see Questions and Answers on PFAS in Food | FDA and Authorized Uses of PFAS in Food Contact Applications | FDA): “There are several different types of PFAS that the FDA has evaluated and are approved for use in food contact applications.”
Inconsistent state laws regarding chemicals in food packaging, concerns about the safety of PFAS chemicals, and the need to address sustainability and regulatory compliance pose significant challenges for manufacturers in the food-contact plastics industry
• The PFAS approved for use in the manufacture of non-stick cookware coating are “molecules that are polymerized (i.e., joined together to form large molecules) and applied to the cookware through a heating process that tightly binds the polymer coating to the cookware. Studies show that this coating contains a negligible amount of PFAS capable of migrating to food.”
• “The PFAS approved for use on paper or paperboard (to prevent grease from going through them) can potentially migrate to food. The FDA conducts a rigorous premarket safety review to ensure that the use of specific PFAS chemicals in food contact applications is safe. Due to recent questions on the potential human health risks from certain PFAS authorized for this use, those PFAS are being phased out pursuant to voluntary agreements with PFAS manufacturers, and all U.S. sales will cease by December 31, 2023.”
• “… the amount of PFAS used as processing aids in the manufacture of other food contact polymers is so small that a negligible amount of PFAS is capable of migrating to food from this use.” Examples of state laws regarding PFAS in food contact materials:
• California: “Plant fiber-based food packaging” that contains PFAS that has been intentionally added to have a functional or technical effect or is present in the product at or above 100 parts per million (ppm) has been banned since January 1, 2023.
• Colorado: Paper-based food packaging with intentionally added PFAS will be banned as of January 1, 2024.
• Connecticut: Food packaging with intentionally added PFAS will be banned as of December 31, 2023. In addition, manufacturers may not substitute any component that creates a hazard as great as or greater than PFAS.
• Maryland: Food packaging to which PFAS were intentionally added will be banned as of January 1, 2024.
• Minnesota: Food packaging containing intentionally added PFAS will be banned as of January 1, 2024. Cookware with intentionally added PFAS will be banned as of January 1, 2025.
• New York: Food packaging containing intentionally added PFAS has been banned since December 31, 2022.
• Oregon: The sale of foodware containers containing intentionally added PFAS will be banned as of January 1, 2025.
• Rhode Island: Food packaging with intentionally added PFAS will be banned as of July 31, 2024. This law also specifies that “[t]he use of a regulated chemical as a processing agent, mold release agent, or intermediate is considered intentional introduction…where the regulated chemical is detected in the final package or packaging component." (See FDA comment on the use of PFAS as processing aids above.)
• Vermont: Food packages to which PFAS have been intentionally added and are present in any amount have been banned since July 1, 2023.
Manufacturing Industry Predicaments
There is a possibility of more inconsistent restrictions on resins and additives used in food packaging. Another concern is whether substitutes for banned chemicals can be found. Certain chemical bans in some states—such as ones in Washington State and Maine—only go into effect if an alternative is available, but other states do not require a viable option before a ban becomes effective. (For example, Maine law 32 MRS §1733(3-B) directs the state’s Department of Environmental Protection to initiate rulemaking to prohibit the use of PFAS in food packaging after determining that safer alternatives are available.)
In the face of sustainability measures and growing state mandates regarding post-consumer recycle content, I also closely follow state Attorney General and private litigation that targets recycled materials, serving as potential obstacles to the industry realizing these sustainability goals.
Recent Project and Its Success Factors
As a law firm, we track a myriad of laws and regulations, both in the U.S. and abroad, including those that apply to new technologies. This is to assist companies in the food-contact space with their global compliance plans. For example, as new types of food packaging and FCMs are developed based on technological advances—such as biobased plastics— these technologies must be considered case-by-case. While biobased plastics are required to comply with the same regulations concerning food safety as fossil-based plastics, several regulatory issues need to be considered. These include determining the appropriate food simulants to estimate the potential for migration, demonstrating that the substance is stable for its intended use, and determining whether certain marketing claims for these products comply with guidelines issued by the Federal Trade Commission and state laws regarding these claims.
Exciting Technological Trends
There are many. Advances in active and intelligent packaging; improvements in mechanical strength, barrier performance, and thermal stability of packaging materials; and advances in sustainable packaging. I have also done work in chemistries designed to remediate smoke exposure from wildfires, which has been exciting to follow.
