Over the past few years, state and federal lawmakers across the country have proposed and even enacted a slew of new laws prohibiting or limiting the use of per- and polyfluoroalkyl substances (PFAS) in consumer products, including food packaging, cosmetics, cookware, toys, and textiles. While attempts to amend the Federal Food, Drug, and Cosmetics Act to prohibit the sale of food packaging containing “intentionally added” PFAS into interstate commerce have been unsuccessful to date, a number of state laws begin to take effect this year. Though the definition of “intentionally added” PFAS or similar term varies from state to state, it generally means the deliberate addition of PFAS for an intended function or technical effect.

New York and California’s new laws, which took effect December 31, 2022 and January 1, 2023, respectively, prohibit the distribution, sale, or offer for sale into the state of any “intentionally added” PFAS to food packaging or food packaging components that are comprised of paper or other materials originally derived from plant fibers.

Key terms and provisions in the new state laws include the definition of “food packaging” (such as whether it is limited to paper and plant-based materials or “direct food contact”), permissible amounts of PFAS, safe harbor provisions, certificates of compliance, and penalties. For example, while the new laws in New York and California are similar in some respects, such as the focus on paper and plant-based materials, there are some notable differences, including New York’s safe harbor and penalty provisions and California’s permissible threshold for PFAS that is not “regulated.”

If your company is part of the supply chain related to the manufacture, sale, or distribution of food packaging components, food packaging, food, or beverages that are sold across the country or specifically in any of the states listed below, you will want to prepare for the business and legal implications of the new laws, including obtaining information and assurances from upstream vendors and suppliers regarding the use or presence of PFAS in the products and materials provided to you and requests from downstream customers for certifications that your products comply with the new laws.

For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our team.