That prohibition took effect January 1, 2023. AG Bonta explains in his letter that as the state’s chief law enforcement officer, he has authority to enforce the prohibition on PFAS in food packaging, including through actions seeking civil penalties, restitution, and injunctive relief.¹ The AG urges companies to assess their packaging to ensure they are compliant with California’s requirements and be aware that failure to comply could subject them to enforcement actions.

Background

In 2021, the California legislature passed the California Safer Food Packaging & Cookware Act (the Act), which Governor Newsom signed into law. Effective January 1, 2023, the Act prohibits businesses, including shops and restaurants, from distributing, selling or offering for sale any “food packaging” that contains “regulated PFAS.” It also establishes disclosure and labeling requirements for manufacturers of cookware.

“Food packaging” is defined broadly as a “nondurable package, packaging component, or food service ware that is intended to contain, serve, store, handle, protect, or market food, foodstuffs, or beverages,” provided it is “comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers.” The definition specifically 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.”

The Act defines PFAS as the “class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom,” and “regulated PFAS” include (1) PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product (including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product); and (2) PFAS in a product or product component that is present at or above 100 parts per million, as measured by total organic fluorine.

Violation of the ban on regulated PFAS in food packaging is an “unlawful fraudulent business act or practice,” and the AG advises it constitutes a violation of California’s Unfair Competition Law, which is punishable by civil penalties (up to $2500 per violation), restitution and injunctive relief.2

Why It Matters

California’s ban on the presence of PFAS in certain food packaging is one of at least twelve separate enacted state laws that restrict or wholly prohibit the presence of PFAS in food packaging. The sheer number of laws, the varying compliance dates (ranging from December 31, 2022, through two years after a safer alternative is identified (e.g., Washington, Maine)), and differences in the type and range of packaging affected (paper-based versus all materials; packaging in direct contact with food versus all packaging) have substantially increased the compliance burden of packaging suppliers, food manufacturers, and food retailers across the supply chain. Key state laws going into effect in 2024 include those in Colorado, Connecticut, Maryland, and Minnesota at the beginning of 2024, Washington in May 2024 (expanded scope of existing law), and Rhode Island in July 2024 (previous January effective date delayed 6 months). Hawaii’s and Oregon’s laws go into effect at the end of 2024/beginning of 2025.

Until now, industry has been in the dark about whether the states with PFAS food packaging laws in effect (New York, California, Washington, and Vermont), have the resources or interest to pursue enforcement. The California AG’s advisory letter makes clear that California will use its resources to enforce the law. Companies that have invested time to evaluate their packaging and ensure it meets the requirements of the Act are well-positioned. Those that have not yet begun or completed their assessment should accelerate their efforts. Mr. Bonta says he has “made it a priority as Attorney General to protect public health and the environment from the threat of further PFAS exposure, and I consider [the Act] an important tool for advancing that priority.”3 His letter concludes by inviting companies who have questions about the Act or the AG’s enforcement posture to direct them to PFAS@doj.ca.gov.

*                           *                           *

If you have any questions about California’s restrictions on the presence of PFAS in food packaging, the scope or application of such restrictions in other states, or strategies and best practices to assess compliance with the various enacted state laws, please reach out to us.

Authored by Elizabeth Fawell, Andrea Bruce, and Connie Potter.