Page 166 - FDCC_InsightsSpecialIssue23

Toxic Tort Law
added PFAS in food packaging. In 2024, Colorado, Maryland, Minnesota, Rhode Island, and Hawaii all have restrictions on the use of PFAS in packaging set to go into effect.
New York Gov. Kathy Hochul recently
signed legislation banning the use of
PFAS in everyday apparel starting at
the end of 2023. Along with California,
apparel manufacturers in New York will
now be required to evaluate product
lines for intentionally added PFAS and
take steps to implement alternatives.
So far, California and New York are the
only states that have enacted legislation
banning the use of PFAS in apparel, but
this may change, and impacted industries will want to track developments in this area.
Safer Alternatives and Cost Evaluation Factors
While most state laws prohibiting the use of PFAS do not consider cost, some do. For example, Washington’s food packaging restrictions take effect only after a state agency determines that a safer alternative is available. This is why Washington will ban the use of intentionally added PFAS only in paper wraps and liners, food boats, pizza boxes, and plates this year and not in other types of food packaging. The law also requires that safer alternatives used in the packaging be available in sufficient quantity, be found at a comparable cost to the PFAS compounds used in the product, and perform as well or better than PFAS used in the packaging.
Industries subject to the restrictions should evaluate their product lines for PFAS, as some state laws permit parties to avoid enforcement by acquiring a certificate of compliance from their suppliers. In addition, parties may receive customer requests for certificates of compliance to the new laws, which manufacturers should carefully evaluate for compliance with the specific requirements of the states where they have operations, along with future regulatory compliance concerns and litigation risks.
Tracking Upcoming PFAS Laws
Industries impacted by upcoming PFAS legislation should track proposed bills during this legislative session and work with industry groups to provide comments and proposals to the bills. Comments to bills could include asking that industries subject to PFAS use restrictions be given additional time to adjust
to the new requirements as well as propose that the requirements be contingent on state agencies – the experts in their field – finding that safer and cost-effective alternatives to PFAS exist for the products impacted.
Ally Cunningham (Partner, Kansas City), Jessie Rosell (Counsel, Kansas City), Matt Walker (Associate, Chicago) and Shanna McCormack (Associate, Kansas City) are members of Lathrop GPM’s environmental and toxic tort team. Mara Cohara serves as Practice Group Leader of Lathrop GPM’s Tort, Insurance & Environmental practice, and as Chair of the FDCC’s Toxic Tort and Environmental Law Section and as its Missouri State Representative.
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FDCC ANNUAL FIVES 2023