This overview explains the PFAS in food packaging law and what it means for businesses. Per- and polyfluoroalkyl substances (PFAS) are a family of man-made chemicals that have been manufactured since at least the 1940s and are used in many products to provide stain resistance, water and oil repellency, and other properties. PFAS do not occur naturally, and some PFAS have been found to persist in the environment for long periods of time. Further, according to the Environmental Protection Agency (EPA) scientific studies have shown that exposure to some PFAS in the environment may be linked to harmful health effects in humans and animals.

The state has been considering approaches to reducing the presence of PFAS in the environment. One such approach is legislation restricting PFAS in food packaging, which was enacted under the Hazardous Packaging Act, Title 2 of Article 37 of the Environmental Conservation Law, and will take effect on December 31, 2022.

Prohibition on intentionally added PFAS in food packaging (effective 12/31/2022)

The restriction of PFAS in food packaging applies specifically to food packaging with intentionally added PFAS, as described in section 37-0203 of the Environmental Conservation Law (ECL). According to that provision, no person shall distribute, sell, or offer for sale in this state food packaging containing PFAS substances as intentionally added chemicals on or after December 31, 2022.

Definitions

Under the law, PFAS are defined as “a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” Additionally, the term “intentionally added” means “a chemical in a product that serves an intended function in the product component.”

Types of packaging covered by the law

Food packaging covered by the law includes packages or packaging components that are intended for direct food contact and are comprised mainly of paper, paperboard, or other materials originally derived from plant fibers. The term “package” includes items such as carrying cases, crates, cups, pails, trays, wrappers, bags and tubs. As an example, any packaging or other container which is used for food service is subject to the law, e.g., cardboard boxes used for pizza, pastry boxes, sandwich wrappers, soup cups, etc.

Food packaging under this law does not include glass, metal, plastic and other materials that are not originally derived from plant fibers.

Consumer goods such as packages of paper plates, cups or bowls that are distributed, sold, or offered for sale at retail locations are also covered under this law. These items are covered because they can be purchased by food service establishments where they could be used to handle food products, and as such, these items will need to comply with the law. Retailers should confirm the compliance of these items by reaching out to the manufacturer. If it is determined that these items contain intentionally added PFAS, retailers should seek to offer PFAS-free alternatives.

Retailers and food service establishments will need to determine whether the packaging items that they are distributing, selling or offering for sale will need to comply with the PFAS restrictions in the law, effective December 31, 2022. Once they have made the determination of which packaging types need to comply, they will need to then determine whether these items contain intentionally added PFAS. Under the law, a certification of compliance provided by the distributor or manufacturer may be relied upon for the purposes of making such determinations.

Processing Aids and Recycled Content

The law prohibits the intentional addition of PFAS to food packaging. Under the law, “intentionally added chemical” means a chemical in a product that serves an intended function in the product component. This prohibition does not mean that all food packaging will be free of PFAS content. PFAS may be introduced in the manufacturing process in a way that is not intentionally added for a function. PFAS may still be present due to:

• the use of PFAS in a processing agent, mold release agent or intermediate
• the use of recycled materials (such as recycled paper)

Even though these PFAS additions are not prohibited by the law, manufacturers have control over the types of processing aids that they use and the Department is encouraging manufacturers to avoid the use of PFAS in processing aids since they contribute to PFAS content in the final food packaging product.

Exemptions under ECL 37-0207

Persons selling food packaging or food contained in food packaging should be aware that the exemptions under Title 2 of ECL Article 37 do not apply to food packaging with intentionally added PFAS.

Compliance Certification

A compliance certification is a written statement that can be used to document compliance with a law. In the case of the PFAS in food packaging law, such certifications can be used to confirm that food packaging or packaging components do not contain PFAS.

The compliance certification provisions in ECL 37-0211 (renumbered) apply to anyone who sells or offers for sale food in food packaging. Persons selling food in food packaging are encouraged to obtain compliance certifications from their suppliers to demonstrate that their food packaging is compliant with Title 2 of Article 37. The compliance certification must state that the specified food package or packaging component complies with Title 2 of ECL Article 37 and must be signed by an authorized official of the manufacturing or distributing company.

Compliance certifications should be maintained on-site where food packaging is being distributed, sold, or offered for sale. Certifications do not need to be submitted to the DEC, however, certifications must be provided to DEC upon request, either as a hard copy or digital file submitted within a reasonable time period. Further, a certification may cover multiple products that are distributed, sold, or offered for sale by an individual manufacturer or distributor.

Ensuring compliance with the law

The best source of information on whether food packaging contains intentionally added PFAS is likely to be the manufacturer or supplier of the packaging. To ensure compliance with the law when the prohibition takes effect on December 31, 2022, DEC recommends that anyone purchasing food packaging for sale or distribution or anyone who sells food contained in such packaging consult with the manufacturer or supplier as soon as possible to confirm that PFAS is not intentionally added to the product.

Recycling and disposal of food packaging containing intentionally added PFAS

New York State regulations currently allow the recycling or disposal of food packaging with municipal solid waste (trash). If the material will be sent to a composting facility, check with the composting facility to ensure it can be accepted.

For more information, please visit https://www.dec.ny.gov/chemical/124367.html

Disclaimer: This information is intended as a summary and should not be misconstrued as Illing Packaging offering legal or regulatory advice. Companies must read and understand PFAS law in full and take appropriate action. Illing Packaging will work with you to support you and your strategies for compliance.