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More States Ban PFAS in Food Packaging

bag of microwave popcorn

Minnesota has recently enacted a law that bans per- and polyfluoroalkyl substances (PFAS) in food packaging, and Maine has passed a law that is being touted as the broadest state ban on PFAS in consumer products.  These laws follow previously enacted bans on PFAS in food packaging in Connecticut, Maine, New York, Vermont, and Washington state, and have since been followed by California’s AB 1200, which bans the use of PFAS in food packaging composed in substantial part of paper, paperboard, or other materials derived from plant fibers (more information on the California bill can be found here).  

In Minnesota, SF 20, an omnibus environment, natural resources, and tourism bill – signed into law by Governor Walz on June 29, 2021 – includes a ban on PFAS in food packaging. Section 105 of that bill bans the manufacture, sale, and distribution of a food package that contains intentionally added PFAS (i.e., deliberately added during the manufacture of a product where the continued presence of PFAS is desired in the final package or packaging component to perform a specific function) as of January 1, 2024.  Under the law, “food package” is defined as a container applied to or providing a means to market, protect, handle, deliver, serve, contain, or store a food or beverage.  It includes: (1) a unit package, an intermediate package, and a shipping container; (2) unsealed receptacles, such as carrying cases, crates, cups, plates, bowls, pails, rigid foil and other trays, wrappers and wrapping films, bags, and tubs; and (3) an individual assembled part of a food package, such as any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks, and labels.  As with prior PFAS bans in food packaging, PFAS is defined as “a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.”

In Maine, following a 2019 bill that authorizes the state’s Department of Environmental Protection (DEP) to prohibit the sale of food packaging containing intentionally added PFAS once a safer alternative is available (see our article on this bill here), “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution” (LD 1503) was passed on July 15, 2021.  The law was enacted by emergency measure without the governor’s signature.

The law includes a number of new requirements and bans impacting PFAS in consumer products, but notably includes an exemption for products for which federal law governs the presence of PFAS in the product in a manner that preempts state authority.  As of January 1, 2023, a manufacturer of a product that contains intentionally added PFAS must submit written notification to the DEP describing the product, the purpose of PFAS in the product, the amount of PFAS in the product, and information on the manufacturer.  This requirement may be waived if the information is otherwise available in the public domain.  Manufacturers also may be asked to provide certificates of compliance for PFAS containing products. 

In addition, effective January 1, 2023, carpet and rugs, as well as fabric treatments, containing intentionally added PFAS will be banned from sale in the state.  Effective January 1, 2030, the law will ban any product that contains intentionally added PFAS, unless Maine’s DEP has deemed by rule that the use of PFAS in that product is “a currently unavoidable use.”  “Product” is broadly defined as an “item manufactured, assembled, packaged or otherwise prepared for sale to consumers, including its product components, sold or distributed for personal, residential, commercial or industrial use, including for use in making other products,” and thus can be interpreted to include food-contact items like cookware.