Most recent updates to exemptions, April 2018.
Certain exemptions are incorporated into the model legislation. All packages and packaging components are subject to the model legislation except those listed below. It is important to note that not all states have adopted the exemptions provided in the model legislation, and in some cases, the exemption was adopted but has expired.
- were manufactured prior to the effective date (Section 5a);
- must comply with federal health or safety requirements (Section 5b);
- would not exceed the maximum contaminant levels but for the addition of recycled materials(Section 5c);
- for which there is no feasible alternative (Section 5d);
- exceed the maximum concentration levels but are reused, expires January 1, 2020 (Section 5e);
- exceed the maximum concentration levels but have a controlled distribution and reuse, expires January 1, 2020 (Section 5f); or
- are glass or ceramic and contain a vitrified decoration (Section 5g). (For more information, see 2008 and 2010 Updates.)
For a complete description of the exemptions, please see the Model Legislation.
Procedure for Exemption and/or Clarification Requests
Filings for exemptions and/or clarifications should include the following information:
- The name, address and phone number of the company seeking an exemption (if a group of companies are applying for the same exemption, then each individual company must be listed);
- The name and position of the person who is to be the contact for each company applying;
- The name of the state or states from which action is requested;
- The nature of the request (e.g., exemption or clarification/definition)
Procedures – Exemption Requests
- The specific exemption(s) that is being requested (see below for a description of each exemption);
- manufactured prior to effective date (petition to state agency is not required)
- compliance with federal statute
- no feasible alternative
- recycled materials (petition to state agency is not required)
- reused materials
- controlled distribution and reused
- vitrified decoration (petition to state agency is not required)
- The reason the company is seeking an exemption, with supporting documentation;
- The type of packaging or packaging component and its use;
- The metals regulated by the laws that are present in the packaging or packaging components; and
- The concentration(s) of the regulated metal(s) that is/are present in the packaging or packaging component and a description of the testing methods used to determine the concentration(s).
The following specific information, which corresponds to the category of exemption that a company seeks, is requested. A company must provide the specific information that corresponds with each separate exemption request.
a. Manufactured Prior to Effective Date
Exemption: Packages or package components with a code indicating date of manufacture that was prior to the effective date of the statute.
Petition to state agency is not required.
b. Compliance with Federal Statute
Exemption: Packages or packaging components to which lead, cadmium, mercury or hexavalent chromium have been added in the manufacturing, forming, printing or distribution process in order to comply with health or safety requirements of federal law.
1.) All specific state and federal statutes; and
2.) Efforts to research or use alternatives.
c. Recycled Materials
Exemption: Packages or packaging components that would not exceed the maximum contamination levels put forth in subsection c of section 4 of the model legislation but for the addition of recycled materials, provided that the packages or packaging components do not exceed a maximum concentration limit of 200 ppm for the sum of the four regulated metals.
Petition to state agency is not required.
d. No Feasible Alternative
Exemption: Only cases in which the regulated metal is essential to the protection, safe handling or function of the packages’ contents would be eligible. Marketing requirements are not considered criteria for this exemption.
1.) Evidence that the regulated metal’s presence is essential to the protection, safe handling or function of the packages’ contents; and
2.) Efforts to seek or develop alternatives.
e. Reused Materials
Exemption: Packages and packaging components that exceed the contaminant levels but are reused.
1.) Percentage of reused materials; and
2.) Efforts to minimize or eliminate the metals.
f. Controlled Distribution
Exemption: Packages and packaging components that exceed the contaminant levels but have a controlled distribution and are reused.
1.) Evidence that the controlled distribution and reuse efforts are greater compared to the same package that is in compliance with levels set forth in subsection c of Section 4;
2.) Percentage of reused materials; and
3.) Efforts to minimize or eliminate the metals.
g. Vitrified Decoration
Exemption: Packaging or packaging component that is glass or ceramic which has a vitrified decoration and when tested in accordance with the Toxicity Characteristic Leaching Procedures of USEPA Test Method SW-846 does not exceed 1.0 ppm for cadmium. 5.0 for hexavalent chromium, and 5.0 for lead. Mercury shall not be exempted by this provision. Petition to state agency is not required.
The submission of proprietary or confidential information to the state(s) may be required. Such information will be handled as confidential by each state according to the state’s administrative procedures for confidential information submitted by an applicant.
Notice of official action on a request for an exemption by a state will be provided to the applicant in writing directly by the state in question. Findings of the state on non-binding actions, such as clarification and/or definition of the toxics in packaging law(s), will also be forwarded to the applicant. In some cases, the state may request additional information from the applicant before a recommendation can be reached. This additional information would be specific to the original request for exemption. In cases where the state has reviewed a request and has not reached a recommendation — an interim response will be sent to the applicant.