Screening for Toxics in Packaging Could Increase: What Suppliers and Sellers Need to Know
March 10, 2009
Heather S. Bowman- San Francisco
Patricia L. "Pat" Goughan- San Francisco
Any company that sells or distributes packaging, packaging components or packaged products is responsible for ensuring that lead, cadmium, mercury and hexavalent chromium are not used in packaging or packaging components above specified levels. Nineteen states have enacted Toxics in Packaging legislation.1 All of these laws are based in whole or in part on a model Toxics in Packaging Act (Model Act) initially proposed by the Coalition of Northeastern Governors (CONEG) in 1989.
Ten of the individual states that enacted this legislation also have organized a Toxics in Packaging Clearinghouse (TPCH) to coordinate and share information, including enforcement information, about the implementation of this legislation. The TPCH randomly selects packaging to test in different member states. A recent settlement in California provided the TPCH with additional funding that will be used for such random testing. These tests are used as a first-screening process for states that then investigate possible violations of the Model Act legislation in that state. Further information, including a current version of the Model Act, is available at the Toxics in Packaging Web site (www.toxicsinpackaging.org), which is maintained by the Northeast Recycling Council (NERC) (www.NERC.org).
Restriction of Heavy Metals in Packaging
Although the specific wording of the state statutes differs slightly from state to state, all of these statutes regulate the amount of four heavy metals (lead, cadmium, mercury and hexavalent chromium) that is permitted to be present in: (i) packaging or packaging components that are sold or offered for promotional use in the state, and/or (ii) the packaging of packaged products that are sold or offered for sale or promotional use in the state (Model Act, Section 4).
Several states, like the Model Act, prohibit the intentional introduction of any these four metals into packaging products and limit the “incidental presence” of these metals to a total (combined) concentration of 100 parts per million (0.01%), by weight. See, e.g. California: Cal. Health & Safety Code section 25214.13 (a),(b); Illinois 415 ILCS 5, section 21.5 (c),(d); Maryland: 1992 Statutes, chapter 491, section 9-1902; Pennsylvania: Pa. Act 1994-112, section 301 (b),(d). However, some states limit only the total concentration of these four compounds in packaging in materials to a total concentration of 100 parts per million, without specifying how these compounds come to present in the packaging material. See, 2008 Florida Statutes, section 403.7191 (3). See also, New York (“included as an element” in excess of this concentration); Virginia and Washington (“intentionally introduced as an element” in excess of this concentration).
Regulated Parties and Regulated Activities
Manufacturer and Distributor Requirements
The Model Act prohibits any “manufacturer” or “distributor” of any “packaging or packaging component” as well as any “manufacturer” or “distributor” of any “product…in a package,” from offering that packaging, packaging component or packaged product for sale or promotional use within the state unless the packaging is compliant with the restrictions on lead, cadmium, mercury and hexavalent chromium set out above (Model Act, Section 4).
Under the Model Act, the “manufacturer” or “supplier” of packaging or packaging components is to furnish a certificate of compliance to the “purchaser” of these materials. A copy of the certificate is also to be made available to the state administrative agency and members of the public upon request (Model Act, section 6).
Manufacturers and distributors of packaging materials typically must provide certificates of compliance for those materials to their customers, or respond to requests for a certificate of compliance from the state or the public. It is advisable that packaging suppliers develop a certificate of compliance consistent with the one proposed by the TPCH. A sample is available on the TPCH website: http://www.toxicsinpackaging.org/certificates_of_compliance.html. Packaging suppliers should also expect customers or the state government to request the backup verification supporting the certificates of compliance.
Certificates of Compliance for Purchasers
A purchaser of packaging materials in certain of the states that have enacted the Model Act are entitled to insist upon, and the manufacturer or supplier of those packaging materials must provide to the purchaser, a certificate of compliance with the heavy metals restriction in the state statute. As indicated above (see the section on the restriction of heavy metals in packaging), some states, including California, restrict the intentional introduction of any amount of such metals as well as provide a numerical limit for any “incidental” content. That is, they prohibit both intentional introduction of these compounds in packaging materials and limit “incidental presence” to a total concentration of all four metals of no more than 100 parts per million by weight. Thus, the certification of compliance that a purchaser should insist upon with its suppliers should cover both aspects of the restriction. A purchaser should retain the completed certifications for a minimum period of three years beyond the date the packaging to which they relate is in use. See, e.g., Florida Statutes, § 403.7191(5).
The certificate of compliance should be requested from all suppliers of packaging materials a purchaser uses either for direct product packaging or for outer packaging of the product as shipped to the customer. To address potential confusion from out-of-country suppliers, it is also advisable to put both the restriction on use of heavy metals and the obligation to provide a certificate of compliance into a company’s purchasing specifications for packaging materials and for pre-packaged product. The specification also provides contractual relief in the event of non-compliance by one of the purchaser’s suppliers and further demonstrates the company’s due diligence in obtaining compliant packaging.
Offer for Sale or Promotional Use
As indicated above, under the Model Act, the prohibition against sale applies to both manufacturers and distributors of packaging materials, as well to manufacturers or distributors of products that are packaged in one or more packaging materials, either as direct product packaging or as shipment packaging. This is made explicit in the enforcement section of the Florida statute, for example, which makes it unlawful for “any person” to “[t]ender for sale to a purchaser any package, packaging component, or packaged product in violation of this section” (emphasis supplied), 2008 Florida Statutes, section 403.7191(7)(b). Thus, a company’s compliance efforts must focus not only its purchase of packaging materials as such, but also its purchase of any pre-packaged products. In addition, the implementation of any purchasing specifications for packaging materials must consider as well the activities of any third-party contractors employed to package a company’s products for sale into any state whose toxics in packaging legislation applies to packaged products.
Conclusion
Any company that sells and delivers packaged products to consumers in one of the states in which the law has been enacted is obligated to ensure that its packaging complies with the heavy metals restriction set out in the specific state statute. It is anticipated that the TPCH will increase random screening of packaging and provide the results of that screening to member states. Once those states have the screening information, their agencies are authorized to request additional information from the manufacturer or seller of the packaged products. Companies selling and delivering packaged products to consumers in one of the states in which the law has been enacted should examine whether they have established a management program to ensure compliance with the Toxics in Packaging Act.
For more information, contact:
Heather S. Bowman
415.743.6942
heather.bowman@hklaw.com
Patricia L. Goughan
415.743.6978
pat.goughan@hklaw.com
toll free: 1.888.688.8500
1 Versions of the model bill have been enacted in the following states: California, Connecticut, Florida, Georgia, Illinois, Iowa, Maine, Maryland, Minnesota, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin.
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