Per- and polyfluoroalkyl substances, commonly known as PFAS, are a family of man-made chemicals manufactured since the 1940s for their stain, water and oil-resisting properties. These so-called “forever chemicals” have been the subject of a growing number of government regulations and burgeoning class-action litigations. As of December 31, 2022, pursuant to section 37-0203 of the Environmental Conservation Law (ECL), no person shall distribute, sell or offer for sale food packaging containing intentionally added PFAS in New York State. New York joins a growing number of states with similar regulations in place. Examples of such food packaging include microwave popcorn bags, fast food containers and some candy wrappers.

Evaluate the Law to Your Business

ECL 37-0203 defines PFAS as a “class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” The term “package” includes items such as carrying cases, crates, cups, pails, trays, wrappers, bags and tubs. The law also applies to consumer goods such as paper plates, cups, and bowls sold to retail locations. Glass, metal, plastic and other materials not derived from plant fibers, however, are not covered by this law.

Significantly, ELC 37-0203 does not address the incidental presence of PFAS in food packaging productions. Instead, the restriction expressly applies to food packaging where PFAS have been intentionally added. The law defines “intentionally added” as serving “an intended function in the product component.” As such, the use of PFAS as a processing agent or included in recycled materials has not been proscribed.

Nevertheless, the New York State Department of Environmental Conservation is encouraging manufacturers to also avoid such uses, possibly signaling future requirements outlawing PFAS in food packaging regardless of intent. Indeed, states such as Pennsylvania, Virginia, and Oregon have already passed such laws.

It is imperative food companies evaluate not only whether their products fall under this new law, but given the likelihood of food distribution in multiple states, taking a broader accounting of their products with knowledge of varying state standards and an eye towards future, likely more restrictive, legislation.

Obtain Compliance Certifications

One immediate step involves compliance certifications. Food packaging manufacturers should maintain written documentation of compliance with ELC 37-0203, on site, attesting their products contain no intentionally added PFAS. A certification may cover multiple products offered for sale or distribution. Those in food distribution should obtain Compliance Certifications from manufacturers. Those in food manufacturing should obtain Compliance Certifications from all those in the supply chain, in particular packaging suppliers.

Work with Experts

Companies may elect to retain experts in the field of PFAS when considering the implications of this new law and especially when facing litigation related to PFAS. Experts should be well-vetted and retained through outside counsel. Experts can advise on compliance, as well as issues of testing, including the significance of PFAS levels, if detected, and potential sources of their origin. The burgeoning PFAS food class actions are largely premised on undisclosed testing performed by plaintiffs’ experts claiming the presence of PFAS.

Contact an Attorney

While ECL 37-0203 only proscribes intentionally added PFAS to food packaging, a growing number of food class actions assume intent based on testing allegedly revealing the presence of PFAS in food items. These lawsuits also claim unfair business practices and deceptive advertising based on label packaging, even in cases where no representations regarding PFAS are being specifically made. Accordingly, manufacturers and distributors concerned with the effect of this legislation and growing class actions are encouraged to contact counsel specializing in PFAS regulation and litigation. It is also recommended companies work alongside outside counsel before retaining an industry expert to assist in protecting privilege.

Harris Beach PFAS Experience

Harris Beach helps clients in multiple industries assess PFAS risks and address contaminant issues that lead to actions by regulatory agencies, including site investigations, off-site contamination concerns, project delays, future liabilities and potential threats of litigation.

We work with scientific experts to help guide clients through legal, regulatory and scientific challenges and uncertainties related to PFAS. We help develop effective risk communication and long-term strategies to investigate possible environmental contamination on-site and off-site, analyze past, present, and pending remediation projects and cleanups, and advise our clients regarding possible liabilities, including enforcement and litigation.

Reach out to attorney Kelly Jones Howell at (212) 912-3652 and khowell@harrisbeach.com, attorney Wayne Gladstone at (212) 313-5491 and wgladstone@harrisbeach.com, or attorney Gene J. Kelly at (518) 701-2740 and GKelly@HarrisBeach.com.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.