Upcoming State Effective Dates for PFAS in Food Packaging

Food manufacturers should be aware of some upcoming compliance deadlines in various states that have banned Per- and polyfluoroalkyl substances (“PFAS”) in food packaging.  Although federal regulators, like the U.S. Environmental Protection Agency (“EPA”) and the U.S. Food and Drug Administration (“FDA”), are focused on individual PFAS chemicals (like PFOA and PFOS) due to health risks, these state laws, for the most part, ban any of the thousand or more chemicals, which are considered PFAS in food packaging.

While various states have implemented bans on a range of PFAS chemicals, there is significant divergence in state laws concerning language, definitions, applicability, and limits. Notably, distinctions arise in the explicit mention of terms such as ‘food’ and ‘food packaging.’ This discrepancy introduces additional ambiguity such as whether the term ‘food’ encompasses both human and animal food(s). Moreover, variations emerge in the inclusion of phrases like ‘intentionally added’ and/or ‘direct food contact,’ with some states providing explicit mention and others remaining silent on these specifics. Additionally, states differ in the definitions of key terms like ‘food,’ ‘food packaging,’ ‘intentionally added,’ ‘regulated PFAS,’ or ‘packaging components.’ Lastly, the regulatory landscape varies, with some states instituting outright bans on PFAS in food or food packaging, while others opt for imposing limits on allowable PFAS levels.

Below we provide additional information on the state-approved laws focused on PFAS in food and/or food packaging.

The following 4 states have laws going into effect on January 1, 2024:

• • Colorado

• • Connecticut

• • Maryland

• • Minnesota

There are 3 more states that have laws going into effect after January 1, 2024:

• • Maine (January 1, 2030)

• • Hawaii (December 31, 2024)

• • Rhode Island (July 1, 2024)

Currently, 4 states have PFAS laws focused on banning the presence of PFAS in food packaging that have gone into effect. Below we provide the prohibited language as mentioned in the various laws.

• • California (effective January 1, 2023): Prohibits “any person from distributing, selling, or offering for sale any food packaging that contains regulated PFAS.”  Also requires “a manufacturer to use the least toxic alternative when replacing regulated PFAS in food packaging.”

• • New York  (effective December 31, 2022): “No person shall distribute, sell or offer for sale… food packaging containing [PFAS] substances as intentionally added chemicals.”

• • Vermont (effective July 1, 2023):  “A manufacturer, supplier, or distributor shall not manufacture, sell, offer for sale, distribute for sale, or distribute for use… a food package to which PFAS have been intentionally added and are present in any amount.”           

• • Washington (effective February 1, 2023 (first part)): “No person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this state food packaging to which PFAS chemicals have been intentionally added in any amount.”
    • •  **May 1, 2024: The second part of Washington’s ban will become effective, which adds a ban for bags and sleeves (made from flexible material), bowls, flat service ware (such as trays and plates), open-top containers, and closed containers.

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If you have additional questions or are interested in better understanding the food and agriculture business risk(s) regarding PFAS and PFAS regulations, please contact Kyla Kaplan (kkaplan@ofwlaw.com).