The legal landscape concerning per- and poly-fluoroalkyl substances (PFAS) — a class of "emerging contaminants" at the center of increasing health and environmental concerns and creating new challenges for business in a variety of sectors — is continuing to rapidly evolve. Connecticut is poised to join a number of states banning certain uses of PFAS in food packaging and firefighting foam. The bill (SB 837) passed both chambers of the Connecticut Legislature with near-unanimous bipartisan support and will become law if either signed by Governor Lamont or not vetoed within 15 days of his receipt of the Public Act (approximately the end of June).
With respect to food packaging, beginning in January 2024, the bill prohibits manufacturers and distributors from offering for sale or promotional purposes any food packaging to which any amount of PFAS has been intentionally added. The bill further prohibits the use of any material intended to replace PFAS or any other chemical already subject to food packaging regulations (e.g., lead, cadmium, mercury) if such use would create an equal or greater hazard. "Food packaging" is any packaging that directly contacts any food or beverage, such as wraps, to-go containers, food boats and cups. Because PFAS are ubiquitous, the prohibition applies only to PFAS "intentionally added" for a specific characteristic, appearance or quality (e.g., grease-resistance). The bill, however, does not ban the use of PFAS in production or for an intermediate function (e.g., as a mold-releasing agent) nor does it apply if PFAS are present in the final packaging as a result of the use of recycled materials.
With respect to firefighting foam, any foam to which PFAS have been intentionally added — such as certain aqueous film forming foams (AFFFs) — cannot be used for testing, training, vapor suppression or firefighting. The foam prohibitions will be implemented in stages. Upon enactment, the ban on testing and training uses will be effective immediately and the ban on "real world" uses will be effective October 1, 2021. There are, however, several carve-outs that permit the continued use of AFFFs, including, for example: (i) against flammable liquid-based fires if the state has not identified an alternative product; (ii) at facilities required by federal law to use AFFF for certain fire types; (iii) at airports and airport-related facilities until October 2023 if there are sufficient environmental protections in place; or (iv) at facilities that receive an extension for compliance from the Connecticut Department of Energy and Environmental Protection. Each of these carve-outs is conditioned on nuanced factors and should be reviewed carefully.
PFAS are a hot topic in Connecticut and nationally. Our environmental attorneys are increasingly advising clients in a variety of business sectors on the legal and technical impacts of PFAS to their operations and/or specific transactions. If you have questions about PFAS, please reach out to any Shipman environmental lawyer or your primary Shipman contact for more information. We are available to assist clients navigate this developing topic and the evolving legal landscape to help companies manage potential PFAS risks.
For more background information on PFAS, please see our prior client alerts for primers on PFAS and PFAS regulation generally and managing PFAS risk in manufacturing as well as an analysis of the Connecticut PFAS Action Plan.
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