August 21, 2019

In June, Maine joined Washington State in presumptive bans on all per- and polyfluoroalkyl substances (PFAS) in 2022, if their respective state agencies make findings that there are “safer alternatives.” These laws were adopted in response to public and environmental group pressures over the presence of some PFAS in certain food packaging, the general ubiquitous and persistent nature of other PFAS, and the desire to “do something” about PFAS.

These state PFAS laws were adopted despite the fact that the U.S. Food and Drug Administration (FDA) regulates PFAS in food contact applications. Since 2000, FDA has authorized the use of food contact substances through the Food Contact Notification program and certain PFAS are currently authorized for use in specific applications related to their non-stick and grease, oil, and water-resistant properties. For example, the Maine legislature barely considered FDA’s regulations in its deliberations on the state law.

While some PFAS do indeed pose risks under particular exposure scenarios, these new food packaging laws cast a broad net over the entire class of compounds. Apparently applying the discredited “precautionary principle,” these laws lump all PFAS together, despite known differences in toxicity, persistence, and fate. State legislators and administrators are taking independent action even as the FDA, the U.S. Environmental Protection Agency (EPA) and other national health agencies struggle with whether the PFAS compounds have enough commonalities to even identify appropriate subclasses of PFAS compounds.

In Maine, the law leaves important decisions to the Maine Department of Environmental Protection (DEP) and the sister agencies it may call on, none of which have experience regulating manufacturing of food packaging, much less understanding or regulating health issues related to food. FDA’s work on food additives requires federal funding and expertise. Maine’s law allows the DEP to force manufacturers to provide information on chemicals, potential for harm, and alternatives, but gives the department no additional resources to analyze that information. In its determinations, the DEP may consider the extent to which the food package is adequately regulated by the federal government or a Maine agency.  This begs the question –Can DEP really do FDA’s job better?  As to PFAS regulation, there is no funding mechanism.

A curious feature of the Maine law exempts the manufacturer of a food or beverage product in a food package as long as the manufacturer has less than $1 Billion in annual national sales of such food and beverage products (presumably U.S. sales). Which raises an additional question — If a package really poses serious risks to food or beverages, is it sensible public policy to allow manufacturers with lower revenues to market those products?

Of course, the larger question is whether we are better off with individual states regulating the components of food packaging, since a significant amount of food packaging is created for national and regional markets. Not only is there no guarantee that different states will arrive at the same levels of concern for the same chemicals, but if the differing PFAS standards for drinking water are any indication, decisions on PFAS bans and alternatives will vary. It is not hard to imagine the difficulties and frustrations that packaging formulators will have trying to get packaging products to market.

To make the future more interesting, the Maine law also creates a new program regulating food contact chemicals, adopting multiple provisions generally modeled on the state’s Toxic Chemicals in Children’s Products law. DEP may create a list of food contact chemicals of high concern (up to 10, but since structurally related chemicals are included, entire classes can be listed), based on toxicity, persistence, and other factors. The DEP may then designate such food contact chemicals as “priority,” which triggers notice to DEP if more than 100 ppm in the package as a contaminant, or if they are intentionally added above a practical quantitation limit. (If there is no notice to the DEP, the package is simply banned.) The DEP may also request information for chemicals of concern and an assessment of alternatives, or may assess a fee and then secure an assessment by a contractor. And the DEP may impose fees for its work, and for managing information it receives. Perhaps most significantly, Maine may ban priority chemicals if there is a “safer alternative.”

Surely, we live in interesting times.