Model Toxics in Packaging Legislation

Model Toxics in Packaging Legislation

Last modified February 2021 (click here for a pdf version); Previously modified December 2008; Summary text modified October 2009 & October 2010; Section 10 added July 2012 (click here for a pdf of the previous 2012 version).

Summary
The newly updated model legislation calls for the reduction of lead, mercury, cadmium, hexavalent chromium, PFAS and phthalates in packaging or packaging materials used or sold within the state, while also adding new processes for identifying and regulating additional chemicals of high concern in packaging. The model legislation prohibits the intentional introduction of the four heavy metals, PFAS and phthalates during manufacturing or distribution. Manufacturers and distributors of packaging or packaging materials are required to reduce the sum of the concentration levels of incidentally introduced lead, cadmium, mercury and hexavalent chromium to 100 parts per million or less and eliminate the intentional introduction of PFAS and phthalates. The model legislation provides an exemption for those 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 State or Federal law, provided that the manufacturer of a package or packaging component must petition the state administrative agency for any exemption for a particular package or packaging component based upon either criterion; or those packages or packaging components to which lead, cadmium, mercury or hexavalent chromium have been added in the manufacturing, forming, printing or distribution process for which there is no feasible alternative, provided that the manufacturer of a package or packaging component must petition the state administrative agency for any exemption for a particular package or packaging component based upon the criterion and submit such documentation as necessary to support the request for the exemption. Manufacturers and suppliers of packaging and packaging components are required to furnish a certificate of compliance to the purchasers of packaging. Certificates must be furnished to state agencies and the public upon request. The model legislation also provides for a review process by the state to determine the effectiveness of the Act. More specifically, that review will address the need to continue the recycling exemption and will determine if other toxic substances contained in packaging should be subject to reduction.

Toxics in Packaging Clearinghouse Model Legislation 2021 Update

Section 1. The Toxics in Packaging Act

Section 2. The legislature finds and declares that:
a. The management of solid waste can pose a wide range of hazards to public health and safety and to the environment;
b. Packaging comprises a significant percentage of the overall solid waste stream;
c. The presence of heavy metals and other toxic chemicals in packaging is a part of the total concern in light of their likely presence in emissions or ash when packaging is incinerated, in leachate when packaging is landfilled, or when packaging has elevated levels of toxic chemicals due to post-consumer materials being recycled into new packaging components;
d. Lead, mercury, cadmium, hexavalent chromium, phthalates, and perfluoroalkyl and polyfluoroalkyl substances (PFAS), on the basis of available scientific and medical evidence, are of particular concern;
e. It is desirable, as a first step in reducing the toxicity of packaging waste, to eliminate the addition of these heavy metals, phthalates, and PFAS to packaging; and
f. The intent of this Act is to achieve this reduction in toxicity without impeding or discouraging the expanded use of recycled materials in the production of packaging and its components.

Section 3. Definitions:
a. Alternative. “Alternative” means a substitute process, product, material, chemical, strategy or combination of these that serves a functionally equivalent purpose to a chemical in a package or packaging component.
b. Chemical. “Chemical” means a substance with a distinct molecular composition or a group of structurally related substances and includes the breakdown products of the substance or substances that form through decomposition, degradation or metabolism.
c. Credible scientific evidence. “Credible scientific evidence” means the results of a study, the experimental design and conduct of which have undergone independent scientific peer review, that are published in a peer-reviewed journal or in a publication of an authoritative federal or international governmental agency, including but not limited to the United States Department of Health and Human Services; National Toxicology Program; Food and Drug Administration and Centers for Disease Control and Prevention; the United States Environmental Protection Agency; the World Health Organization; and the European Union, European Chemicals Agency.
d. Distribution. “Distribution” means the practice of taking title to (a) package(s) or packaging component(s) for promotional purposes or resale. Persons involved solely in delivering (a) package(s) or packaging component(s) on behalf of third parties are not considered distributors.
e. Distributor. “Distributor” means any person, firm or corporation who takes title to packages or packaging components, produced either domestically or in a foreign country, purchased for resale or promotional purposes.
f. Incidental Presence. “Incidental Presence” means the presence of a regulated metal or other regulated chemical as an unintended or undesired ingredient of a package or packaging component.
g. Intentional Introduction of regulated metals. “Intentional Introduction” means the act of deliberately utilizing a regulated metal in the formation of a package or packaging component where its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance, or quality. The use of a regulated metal as a processing agent or intermediate to impart certain chemical or physical changes during manufacturing, whereupon the incidental retention of a residue of said metal or chemical in the final package or packaging component is neither desired nor deliberate, is not considered intentional introduction for the purposes of this Act where said final package or packaging component is in compliance with Section 4 of this Act.
The use of post-consumer recycled materials as feedstock for the manufacture of new packaging materials, where some portion of the post-consumer package or packaging component may contain amounts of the regulated metals but is neither desired nor deliberate, is not considered intentional introduction for the purposes of this Act where said final package or packaging component is in compliance with Section 4 of this Act.
h. Intentional Introduction of PFAS, Phthalates and other regulated chemicals. “Intentional Introduction” means the act of deliberately utilizing a regulated chemical in the formation of a package or packaging component where its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance, or quality. The use of a regulated chemical as a processing agent, mold release agent or intermediate is considered intentional introduction for the purposes of this Act where the regulated chemical is detected in the final package or packaging component. The use of post-consumer recycled materials as feedstock for the manufacture of new packaging materials, where some portion of the post-consumer package or packaging component may contain amounts of the regulated chemicals but is neither desired nor deliberate, is not considered intentional introduction for the purposes of this Act where said final package or packaging component is in compliance with Section 4 of this Act.
[States may choose to sunset the last clause of (h) no more than five years after bill passage on the basis that post-consumer materials are expected to be free of any intentionally added regulated chemicals.] i. Manufacturer. “Manufacturer” means any person, firm, association, partnership, or corporation producing (a) package(s) or packaging component(s) as defined in this Act.
j. Manufacturing. “Manufacturing” means: Physical or chemical modification of (a) material(s) to produce packaging or packaging components.
k. Package. “Package” means any container, produced either domestically or in a foreign country, providing a means of marketing, protecting or handling a product and shall include a unit package, an intermediate package or a shipping container as defined in American Society of Testing and Materials (ASTM) specification D 996. “Package” shall also mean and include such unsealed receptacles as carrying cases, crates, cups, pails, rigid foil and other trays, wrappers and wrapping films, bags and tubs.
l. Packaging Component. “Packaging Component” means any individual assembled part of a package which is produced either domestically or in a foreign country, such as, but not limited to, any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks, dyes, pigments, adhesives, stabilizers, labels or any other additives. Tin-plated steel that meets the American Society for Testing and Materials (ASTM) specification A 623 shall be considered as a single package component. Electro-galvanized coated steel and hot dipped coated galvanized steel that meets the American Society for Testing and Materials (ASTM) specifications A653, A924, A879 and A591 shall be treated in the same manner as tin-plated steel.
m. Perfluoroalkyl and polyfluoroalkyl substances; PFAS. “Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means all members of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
n. Phthalates. “Phthalates” or “ortho-phthalates” mean all members of the class of organic chemicals that are esters of phthalic acid and that contain 2 carbon chains located in the ortho position.
o. PBT vPvB. “Persistent, Bioaccumulative, and Toxic (PBT)” substances and “very Persistent and very Bioaccumulative (vPvB)” substances mean substances meeting the criteria established in Section 1 of Annex XIII to the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation of the European Union (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006, as amended.
p. PMT vPvM. “Persistent, Mobile, and Toxic (PMT)” substances and “very Persistent and very Mobile (vPvM)” substances mean substances meeting the criteria established in “REACH: Improvement of guidance and methods for the identification and assessment of PMT/vPvM substances: Final Report.” TEXTE 126/2019. Environmental Research of the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety. Project No. (FKZ) 3716 67 416 0, Report No. FB000142/ENG. November 2019.
q. Post-Consumer Recycled Material: “Post-Consumer Recycled Material” means a material generated by households or by commercial, industrial and institutional facilities in their role as end-users of the product that can no longer be used for its intended purpose, including returns of material from the distribution chain. Refuse-derived fuel or other material that is destroyed by incineration is not a recycled material.
r. Recycling. “Recycling” means the process of collecting and preparing recyclable materials and reusing the materials in their original form or using them in manufacturing processes that do not cause the destruction of recyclable materials in a manner that precludes further use.
s. Substitute material. “Substitute material” means a material used to replace lead, cadmium, mercury, hexavalent chromium, phthalates, PFAS or other regulated chemicals in a package or packaging component.
t. Supplier. “Supplier” means any person, firm, association, partnership, or corporation who sells, offers for sale, or offers for promotional purposes packages or packaging components which shall be used by any other person, firm, association, partnership, or corporation to package (a) product(s).
u. Toxic Chemical. “Toxic chemical” is a chemical listed as a packaging chemical of high concern as listed in Section 6.

Section 4. Prohibition/Schedule for Removal of Intentional Amounts; Substitute Materials.
a. Prohibition of sale or distribution of package or packaging components containing lead, cadmium, mercury or hexavalent chromium. Beginning XXXXXX a manufacturer, supplier or distributor may not offer for sale or for promotional purposes a package or packaging component to which lead, cadmium, mercury or hexavalent chromium has been intentionally introduced during manufacturing or distribution in any amount greater than an incidental presence. The sum of the concentration levels of lead, cadmium, mercury or hexavalent chromium incidentally present in any package or packaging component shall not exceed 100 parts per million by weight (0.01%). [For states newly adopting this legislation, Section 4(a) can be effective immediately as it is already enacted in 19 states.] b. Prohibition of sale or distribution of package or packaging components containing phthalates. Beginning XXXXXX, a manufacturer, supplier or distributor may not offer for sale or for promotional purposes a package or packaging component to which phthalates have been intentionally introduced during manufacturing or distribution in any amount. The sum of the concentration levels of phthalates incidentally present in any package or packaging component shall not exceed 100 parts per million by weight (0.01%).
c. Prohibition of sale or distribution of a package or packaging components containing PFAS. Beginning XXXXXX, a manufacturer, supplier or distributor may not offer for sale or for promotional purposes a package or packaging component to which PFAS has been intentionally introduced during manufacturing or distribution in any amount. There shall be no detectable PFAS in any package or packaging component.
d. Substitute materials. No material used to replace a chemical regulated by this Act in a package or packaging component may be used in a quantity or manner that creates a hazard as great as or greater than the hazard created by the chemical regulated by this Act. The Certificate of Compliance will require an assurance to this effect.

Section 5. Exemptions. All packages and packaging components shall be subject to this Act, unless, an individual state adopts into their law, any or all of the below exemptions, which shall then apply only in that state.
a. those 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 State or Federal law, provided that the manufacturer of a package or packaging component must petition the [state administrative agency] for any exemption from the provisions of this subsection for a particular package or packaging component based upon either criterion; and provided further that the [state administrative agency] may grant an exemption for up to two years if warranted by the circumstances; and provided further that such an exemption may, upon reapplication for exemption and meeting the criteria of this subsection, be renewed at two-year intervals; or
b. those packages or packaging components to which lead, cadmium, mercury or hexavalent chromium have been added in the manufacturing, forming, printing or distribution process for which there is no feasible alternative, provided that the manufacturer of a package or packaging component must petition the [state administrative agency] for any exemption from the provisions of this subsection for a particular package or packaging component based upon the criterion and submit such documentation as necessary to support the request for the exemption; and provided further that the [state administrative agency] may grant an exemption for up to two years if warranted by the circumstances; and provided further that such an exemption may, upon reapplication for exemption and meeting the criterion of this subsection, be renewed at two-year intervals. For purposes of this subsection, a use for which there is no feasible alternative is one in which the petitioner conclusively demonstrates that the regulated substance is essential to the protection, safe handling, or function of the package’s contents and that technical constraints preclude the use of alternatives. “No feasible alternative” does not include use of any of the regulated metals for the purposes of marketing.

Section 6. Identification and Prohibition of packaging chemicals of high concern:
In accordance with the requirements of this section, the department may periodically revise and publish a list of packaging chemicals of high concern.
1. Criteria. A chemical may be included on the list under this section only if:
A. The chemical is included on the list of chemicals of concern published by the [state administrative agency] or the chemical has been identified by an authoritative governmental entity on the basis of credible scientific evidence as being:

(1) A carcinogen, a reproductive or developmental toxicant or an endocrine disruptor; or
(2) Persistent, bioaccumulative and toxic (PBT); or
(3) Very persistent and very bioaccumulative (vPvB); or
(4) Persistent mobile and toxic (PMT); or
(5) Very persistent and very mobile (vPvM); or
B. The [state administrative agency] determines that there is strong credible scientific evidence that the chemical is a reproductive or developmental toxicant, endocrine disruptor or human carcinogen; and
C. The [state administrative agency] determines that there is strong credible scientific evidence that the chemical meets one or more of the following additional criteria:
(1) The chemical has been found through biomonitoring studies to be present in human blood, human breast milk, human urine or other human bodily tissues or fluids; or
(2) The chemical has been found through sampling and analysis to be present in packaging; or
(3) The chemical has been added to or is present in a package.
2. Revisions. The [state administrative agency] may periodically review the list published pursuant to this section and shall remove from the list any packaging chemical of high concern that no longer meets the criteria of subsection 1. The [state administrative agency] may add to the list additional packaging chemicals of high concern that meet the criteria of subsection 1, except that the list under this section may not at any one time include more than 10 packaging chemicals of high concern.
3. Toxic Chemical. A packaging chemical of high concern listed pursuant to this section is defined as a toxic chemical. To fulfill this statute’s goal of reducing the toxicity of packaging waste, the [state administrative agency] may:
A. prohibit by rule the sale of packaging and packaging components to which the toxic chemical has been intentionally introduced, by adding the chemical to Sec. 4 of this statute with an effective date no later than two years after rule promulgation, or;
B. recommend to the state legislature that the toxic chemical be added to the prohibited chemicals identified in Section 4 of this statute, with an effective date no later than two years after date of enactment.
4. Regulatory efficiency. The [state administrative agency] may, in exercising its discretionary authority under this section, consider the extent to which a chemical known to be used or present in a package or packaging component is adequately regulated by the Federal Government or an agency of this State to reduce or prevent the same public health threats that would be the basis for addressing the chemical under this section.

Section 7. Certificate of Compliance:
a) Upon request, a Certificate of Compliance stating that a package or packaging component is in compliance with the requirements of this Act shall be furnished by its manufacturer or supplier to the purchaser of the packaging or packaging component. Where compliance is achieved under any state exemption(s) provided in Section 5, the Certificate of Compliance shall state the specific basis upon which the exemption is claimed. The Certificate of Compliance shall be signed by an authorized official of the manufacturing or supplying company. The purchaser shall retain the Certificate of Compliance for as long as the package or packaging component is in use. A copy of the Certificate of Compliance shall be kept on file by the manufacturer or supplier of the package or packaging component.
b) Public Access. Certificates of Compliance, or copies thereof, shall be furnished to the [state administrative agency] and to members of the public upon request. A manufacturer or supplier may make the Certificate of Compliance available on their company website or through an authorized representative of the company such as a packaging clearinghouse.
1. Any request from a member of the public for any Certificate of Compliance from the manufacturer or supplier of a package or packaging component shall be:
• Made in writing with a copy provided to the [state administrative agency];
• Made specific as to package or packaging component information requested;
• Responded to by the manufacturer or supplier within 60 days.
c) If the manufacturer or supplier of the package or packaging component reformulates or creates a new package or packaging component, the manufacturer or supplier shall provide an amended or new Certificate of Compliance for the reformulated or new package or packaging component to all current purchasers.
d) Enforcement: Certificate of compliance. If there are grounds to suspect that a package is being offered for sale in violation of this chapter, the [state administrative agency] may request that the manufacturer or distributor of the package provide a certificate of compliance with the applicable provisions of this chapter. Within 30 days of receipt of a request under this subsection, the manufacturer or distributor shall:
1. Provide the [state administrative agency] with the certificate attesting that the package does not contain a chemical regulated under this act; or
2. Notify persons who sell the package in this State that the sale of the package is prohibited and provide the [state administrative agency] with a copy of the notice and a list of the names and addresses of those notified.

Section 8. State Review:
The [state administrative agency] may consult with the Toxics in Packaging Clearinghouse (TPCH) to review the effectiveness of this Act within five years of its adoption and every 5 years thereafter. The [state administrative agency] may provide a report based upon that review to the Governor and Legislature. The report may contain recommendations to add other chemicals contained in packaging to the list set forth in this Act in order to further reduce the toxicity of packaging waste, and a description of the nature of the substitutes used in lieu of lead, mercury, cadmium, hexavalent chromium, PFAS, phthalates and other regulated chemicals.

Section 9. Multi-State Clearinghouse:
The [state administrative agency] is authorized to participate in the Toxics in Packaging Clearinghouse, a multi-state organization, to assist in carrying out the requirements of this [Title/Act/section] and help coordinate joint outreach and education, responses to manufacturer inquiries, review of exemption requests, packaging screening and testing projects, and any other reports, activities or related functions that benefit from the cooperative efforts of multiple states regarding implementation of their toxics in packaging provisions.

Section 10. Implementation, administration and enforcement; rules; violations:
1. The department shall implement, administer and enforce this chapter and may adopt rules as necessary for the implementation, administration and enforcement of this chapter.
2. Violations. A person that violates any provision of this chapter is subject to penalties in accordance with (the appropriate state authority). Each state to add its own enforcement provisions as necessary.

Section 11. Severability and Construction.
The provisions of this Act shall be severable, and if any court declares any phase, clause, sentence, or provision of this Act to be invalid, or its applicability to any government, agency, person, or circumstance is declared invalid, the remainder of the Act and its relevant applicability shall not be affected. The provisions of this Act shall be liberally construed to give effect to the purposes thereof.

Section 12. Effective Date.
This Act shall become effective immediately upon adoption.

As revised, December 1998, October 2004, December 2008, July 2012, February 2021.