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Food Packaging Included in California’s New Product Safety Regs Work Plan

In February 2018, California’s Department of Toxic Substances Control (DTSC) released a Draft Three-Year Priority Product Work Plan for 2018 through 2020 (Draft Work Plan that includes food packaging as a priority category.  DTSC is required to issue a work plan every three years under the state’s Green Chemistry Initiative and the Safer Consumer Products (SCP) implementing regulations

The SCP regulations establish a four-step process to identify and regulate products that may expose consumers to toxic chemicals.

  1. DTSC publishes a list of “Candidate Chemicals”
  2. DTSC develops a list of “Priority Products” (consumer products that contain one or more of the Candidate Chemicals)
  3. Responsible entities inform DTSC that their products have been listed as a Priority Product and then perform an Alternatives Analysis (AA) for the product to identify how environmental and public health impacts of the chemical may be limited
  4. DTSC issues a “regulatory response,” which could include (a) requiring supplemental information; (b) requiring additional information be provided to consumers; (c) imposing product use restrictions; (d) banning the product; (e) requiring engineering or administrative controls; (f) requiring an end-of-life management program; or (g) when no viable safer alternative is found, requiring the manufacturer to initiate research to find a safer alternative

DTSC’s Draft Work Plan, which is a precursor to Step 2 above, lists product categories that the agency will evaluate through research, information call-ins, and public workshops to identify Priority Products. The current product categories include five categories carried over from the 2015-2017 Work Plan (beauty, personal care, and hygiene products; cleaning products; household, school, and workplace furnishings and décor; building products and materials used in construction and renovation; and consumable office, school, and business supplies), in addition to two new categories (food packaging and lead-acid batteries).

Food packaging is defined as “any product that is used to package hot, cold, or room-temperature food items for wholesale sale to restaurants and grocery stores or for retail sale to consumers.”  DTSC explains that this product category was included due to concerns regarding exposure to the Candidate Chemicals that are potentially contained in food packaging. 

The full list of Candidate Chemicals includes about 2,500 chemicals. The Draft Work Plan provides the following examples of Candidate Chemicals found in food packaging: (1) Bisphenol A and S as a “constituent in plastic resin lining food and beverage cans,” (2) perfluoroalkyl and polyfluoroalkyl substances which “create grease-proof and water-proof coatings for food packaging;” (3) phthalates as plasticizers; and (4) styrene as a “constituent of polystyrene and rubber products.” 

DTSC held a public workshop on the Draft Work Plan on February 26, 2018 and accepted written comments on the plan from February 12, 2018 through March 9, 2018. There were 33 comments submitted, which can be viewed here. Regarding food packaging, the comments ranged from calls to eliminate it as a product category to strong support for its inclusion.

Since product categories are just a starting point for identifying Priority Products, it is possible that food packaging may not ultimately be selected as a Priority Product.  

© 2018 Keller and Heckman LLP

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PackagingLaw.com is the premier online resource for the global packaging industry. It provides a wide range of information on laws and regulations—both in the U.S. and other countries throughout the world—that affect packages and packaging materials. PackagingLaw.com features news articles on current issues affecting the packaging industry, in-depth features, an Ask an Attorney section, links to packaging industry and government websites, and detailed information on the U.S. Food and Drug Administration (FDA) Food Contact Notification system.

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