California Bans PFAS in Food Packaging and Requires Labeling for Chemicals in Cookware

On October 5, 2021, California became the latest state to adopt legislation (A.B. 1200) prohibiting the manufacture, sale, or distribution of perfluorinated alkyl substance (or PFAS) in food packaging applications.¹ In addition, A.B. 1200 requires that manufacturers of "cookware" sold in the state list the presence of chemicals on the label of the product if it contains one of over 2,000 intentionally added chemicals.

What new requirements are imposed by A.B. 1200?

PFAS Food Packaging Prohibition – The law specifically prohibits the sale of food packaging that is comprised of paper, paperboard, or other fibrous materials and that contains "regulated PFAS" beginning January 1, 2023.² PFAS are defined broadly to include "a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom" and "regulated PFAS" means PFAS that either has been intentionally added to a product to have a technical or functional effect in the product -or- PFAS that is present in a product at a level above 100 parts per million (ppm). The law also requires that a manufacturer must use the least toxic alternative when replacing PFAS in food packaging.

Cookware Labeling Disclosure – Beginning January 1, 2024, A.B. 1200 will require that manufacturers of cookware include a label with their product that discloses the presence of any chemicals that might have been intentionally added to the product and that are a "designated chemical." Cookware is defined very broadly to include "durable houseware items that are used in homes and restaurants to prepare, dispense, or store food, foodstuffs, or beverages. Cookware includes pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls, and cooking utensils." "Intentionally added chemical" also is defined broadly to include "a chemical that a manufacturer has intentionally added to a product and that has a functional or technical effect in the product."³

The list of chemicals that will trigger the labeling requirement is long. This is because the list of "designated chemicals" includes chemicals identified by California's Department of Toxic Substances Control (DTSC) as candidate chemicals that "exhibit a hazard trait or an environmental or toxicological endpoint" under the criteria established by California's so-called "Green Chemistry" law (Cal. Health & Safety Code § 25251 (2021)) and its implementing regulations (Cal. Code Regs., title 22, § 69502.2 (2021)).⁴ That candidate chemical list is drawn up based on DTSC’s discretion under the parameters described in § 69502.2(b), and on the following lists:

• Chemicals known to cause cancer and/or reproductive toxicity that are listed under Health and Safety Code section 25249.8 of the California Safe Drinking Water and Toxic Enforcement Act of 1986 (i.e., Proposition 65);
• Chemicals classified by the European Union as carcinogens, mutagens, and/or reproductive toxicants Categories 1A and 1B in Annex VI to Regulation (EC) 1272/2008;
• Chemicals included in the European Union candidate list of Substances of Very High Concern in accordance with Article 59 of Regulation (EC) 1907/2006 on the basis of Article 57(f) for endocrine disrupting properties;
• Chemicals for which a reference dose or reference concentration has been developed based on neurotoxicity in the United States Environmental Protection Agency's Integrated Risk Information System;
• Chemicals that are identified as "carcinogenic to humans," "likely to be carcinogenic to humans," or Groups A, B1, or B2 carcinogens in the United States Environmental Protection Agency's Integrated Risk Information System;
• Chemicals that are identified as "known to be" or "reasonably anticipated to be" a human carcinogen in the 13th Report on Carcinogens, United States Department of Health and Human Services, Public Health Service, National Toxicology Program;
• Chemicals included in the European Union candidate list of Substances of Very High Concern in accordance with Article 59 of Regulation (EC) 1907/2006 on the basis of Article 57(d), Article 57(e), or Article 57(f) for persistent, bioaccumulative and toxic, or very persistent and very bioaccumulative properties;
• Chemicals that are identified as Persistent, Bioaccumulative, and Inherently Toxic to the environment by the Canadian Environmental Protection Act Environmental Registry Domestic Substances List;
• Chemicals classified by the European Union as respiratory sensitizers Category 1 in Annex VI to Regulation (EC) 1272/2008;
• Groups 1, 2A, and 2B carcinogens identified by the International Agency for Research on Cancer;
• Neurotoxicants that are identified in the Agency for Toxic Substances and Disease Registry's Toxic Substances Portal, Health Effects of Toxic Substances and Carcinogens, Nervous System;
• Persistent Bioaccumulative and Toxic Priority Chemicals that are identified by the United States Environmental Protection Agency's National Waste Minimization Program;
• Reproductive or developmental toxicants identified in Monographs on the Potential Human Reproductive and Developmental Effects, National Toxicology Program, Office of Health Assessment and Translation;
• United States Environmental Protection Agency's Toxics Release Inventory Persistent, Bioaccumulative, and Toxic Chemicals that are subject to reporting under the Emergency Planning and Community Right-to-Know Act section 313; and/or
• Washington Department of Ecology's Persistent, Bioaccumulative, Toxic Chemicals identified in the Washington Administrative Code, title 173, chapter 173-333.
• Chemicals for which Notification Levels, as defined in Health and Safety Code section 116455, have been established by the California Department of Public Health;
• Chemicals for which primary Maximum Contaminant Levels have been established and adopted under section 64431 or section 64444 of chapter 15 of title 22 of the California Code of Regulations;
• Chemicals identified as Toxic Air Contaminants under sections 93000 and 93001 of title 17 of the California Code of Regulations;
• Chemicals that are identified as priority pollutants in California Water Quality Control Plans under section 303(c) of the federal Clean Water Act and in section 131.38 of title 40 of the Code of Federal Regulations, or identified as pollutants by California or the United States Environmental Protection Agency for one or more water bodies in California under section 303(d) of the federal Clean Water Act and section 130.7 of title 40 of the Code of Federal Regulations;
• Chemicals that are identified with non-cancer endpoints and listed with an inhalation or oral Reference Exposure Level by the California Office of Environmental Health Hazard Assessment under Health and Safety Code section 44360(b)(2);
• Priority Chemicals that are identified under the California Environmental Contaminant Biomonitoring Program;
• Chemicals that are identified on the Centers for Disease Control and Prevention's Fourth National Report on Human Exposure to Environmental Chemicals and Updated Tables; and/or
• Chemicals that are identified on Part A of the list of Chemicals for Priority Action, Oslo, and Paris Conventions for the Protection of the Marine Environment of the North-East Atlantic.

If the cookware contains any candidate chemical from one of these authoritative lists that is intentionally added to the product, the label for the cookware must disclose the presence of these chemicals with the introductory phrase: "This product contains…" Additionally, the label must include a statement in English and Spanish that directs the viewer to the manufacturer’s website and also provides a QR code. The website and QR code must: (1) repeat the list of chemicals in the cookware that are on one of the authoritative lists, (2) include the names of the authoritative lists referenced above, and (3) include a link to the internet website for each authoritative list.

No "free of" claims may be made for any cookware that contains an intentionally added chemicals included on one of the authoritative lists.

The only exemption to this labeling requirement is for cookware that: (1) possesses a surface area that cannot accommodate a product label of at least two inches and (2) does not have an exterior container or wrapper on which a label can appear or be affixed or does not have a tag or attachment with information about the product attached to the cookware.

What are the implications of A.B. 1200?

The PFAS prohibition in food packaging will continue to force companies to find suitable alternatives for use in paper, paperboard, and other plant-based food packaging. While California was not the first state to adopt legislation restricting or prohibiting the use of PFAS in food packaging, the fact that California has now adopted such a law will likely lead to even more states considering adoption of similar legislation. 

The cookware labeling requirement may put pressure on companies to not only disclose formulation information, but also to do so in relatively quick order. Additionally, due to the scope of the list of candidate chemicals, this will be a rather significant undertaking, particularly since some cookware articles may be formulated from multiple components and may involve outreach to many different suppliers for even a single article. To put the size of the candidate chemical list in perspective: it currently contains well over 2,000 chemicals, compared to California’s Proposition 65 list, which currently includes approximately 1,000 chemicals known to the state to cause cancer or reproductive harm. The definition for the term "cookware" also is somewhat vague, and may leave some companies asking whether their products are covered under the labeling requirement. Similarly, the definition for the term "intentionally added chemical" could lead to questions as to its scope and meaning. Companies also may find it challenging to develop separate labels for other states, so the new cookware labels may appear across the country.

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Steptoe & Johnson LLP will continue to monitor developments regarding the implementation of A.B. 1200. Please contact us if you have any questions.

Endnotes

¹ See A.B. 1200, Plant-based food packaging; cookware: hazardous chemicals, amending Chapter 15 to Part 3 of Division 104 of Cal. Health & Safety Code, available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB1200. A number of other states have adopted legislation prohibiting the sale of food packaging containing PFAS, including Washington, New York, Vermont, and Connecticut.

² "Food packaging" is defined to mean "a nondurable package, packaging component, or food service ware that is intended to contain, serve, store, handle, protect, or market food, foodstuffs, or beverages, and is comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers. "Food packaging" includes food or beverage containers, take-out food containers, unit product boxes, liners, wrappers, serving vessels, eating utensils, straws, food boxes, and disposable plates, bowls, or trays."

³ The full definition for "intentionally added chemical" includes "a chemical that a manufacturer has intentionally added to a product and that has a functional or technical effect in the product, including the components of intentionally added chemicals and intentional breakdown products of an added chemical that also have a functional or technical effect in the product."

⁴ For the list of candidate chemicals, see California Department of Toxic Substances Control, Candidate Chemicals, available at https://dtsc.ca.gov/scp/candidate-chemicals-list/.