Toxics in Packaging Legislation at the State Level

In 1989, the Coalition of Northeastern Governors (CONEG)[1] developed model legislation designed to reduce the levels of four heavy metals entering the municipal solid waste stream by reducing the levels of the metals in packaging. California is the latest in a long line of states to enact legislation based on the CONEG model, with this heavy metal packaging legislation due to go into effect January 1, 2006. While the California version generally tracks the CONEG model, it bypasses the staged implementation of the law and more clearly distinguishes between incidental presence and intentional use of heavy metals in packaging. The California law is discussed in more detail below.

The Model and Its Adoption by the States

Prepared by the Source Reduction Council (SRC) of CONEG (an advisory group with representatives from industry, the state governments, and public interest groups), the model toxics in packaging legislation is intended to reduce the levels of lead, cadmium, mercury, or hexavalent chromium in packaging and packaging waste. By lowering the contribution of these metals to the waste stream, the level of these metals entering the environment through landfills and incinerators also is reduced.

The model legislation seeks to ban, within two years of the passage of the legislation, the sale of packaging that contains any of the specified heavy metals, if, during manufacture or distribution, the metals are intentionally added to the package itself or added to any packaging component, including inks, dyes, pigments, adhesives, stabilizers. The legislation is intended to apply equally to domestic and imported packaging products.

The model legislation also phases out the incidental presence of these metals to trace levels over a period of four years. The legislation requires that within two years of enactment, the incidental level of combined heavy metals in packaging must not exceed 600 ppm by weight. This limit is reduced to 250 ppm within three years of enactment of the law, and 100 ppm within four years. The model legislation limit on incidental levels applies to the total levels of these metals, rather than providing a permitted level of each metal individually. Thus, when fully enacted, the sum of the concentrations of lead, cadmium, mercury, and hexavalent chromium must not exceed 100 ppm.

Nineteen states have now enacted laws based on the CONEG model[2]. Each of these laws applies to the same set of heavy metals, and each law adopts the threshold levels set out in the CONEG model.

The laws passed in the various states define "packages" and "packaging component" in essentially the same manner. The model bill defines "package" as containers providing a means of marketing, protecting, or handling a product and includes unit packages as well as intermediate packages and shipping containers, cross-referencing the packaging definitions found in ASTM D996 (American Society for Testing and Materials). The definition includes, but is not limited to, unsealed receptacles such as carrying cases, crates, cups, and other trays and wrappers.

A "packaging component" is defined as any individual assembled part of a package including, but not limited to, any interior or exterior blocking, bracing, cushioning, coatings, closure, inks, and labels[3]. Resin beads and powder are not containers, per se; however, resin supplied to a packaging manufacturer is considered, under the CONEG state laws, as a packaging component.

The primary variation in the state laws concerns the distinction between intentionally introduced and incidentally present heavy metals in packaging. The laws of New York, Missouri, Florida, and Wisconsin do not prohibit the intentional introduction of heavy metals in packaging. Rather, the threshold values in these states apply to the total concentration of heavy metals in the packaging, regardless of whether their presence is intentional or incidental.

There is some variation between the states as to which exemptions are available and the expiration dates for exemptions. A unique provision in Maine's law is that materials used to replace heavy metals in packaging may not create a hazard equal to or greater than the hazard created by the heavy metals.

The CONEG model also requires that manufacturers or suppliers provide certificates of compliance to its customers stating that a package or packaging component is in compliance with the CONEG limits; these certificates of compliance must be placed on a file at the manufacturer or supplier and can be reviewed by the public and the appropriate state authority upon request. Some of the state laws contain an identical certificate of compliance requirements as the model; others require certificates in only certain instances, e.g., at the request of a state agency, a customer, or a member of the public.

As to testing methods, the model legislation also does not specify testing methods for detecting heavy metals, as it was the SRC's determination that all common testing methods are accurate at the 100 ppm level. The SRC did suggest referencing ASTM test methods or the U.S. EPA Office of Solid Waste and Emergency Response publication, Test Methods for Evaluating Solid Waste (SW 846). Several states, including Connecticut, Georgia, and Virginia, have incorporated this recommendation into their legislation.

California Adopts Heavy Metal Packaging Law

California is the most recent state to adopt "toxics in packaging" legislation; former Governor Gray Davis signed the legislation in October 2003[4]. In all states but California, the legislation has been in force for more than four years, and thus, the 100 ppm level currently applies in all of the states but California. In California, the law does not have a gradual phase-in period, but rather immediately imposes the strictest 100 ppm limit on the incidental level of the metals when the law takes full effect on January 1, 2006. This is the same date that the ban on the intentional use of these heavy metals becomes effective.

The California law also attempts to resolve one of the points of contention regarding the model. In its definition section, which is considerably more detailed than the model, California makes clear that intentional introduction means the act of "deliberately utilizing a regulated material in the formation of a packaging or packaging component where its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance, or quality."

Further, "intentional introduction" does not include the use of one of the metals as a "processing aid" or "intermediate" to impart "certain chemical or physical changes during manufacturing, where the incidental retention of a residual of that metal in the final packaging or packaging component is not desired or deliberate," if the final packaging or packaging component complies with the incidental concentration restrictions (100 ppm) of the law. This clarification seems to get at the issue of the use of heavy metal catalysts and other manufacturing processing aids that are not intended to function in a final polymer but only serve to further the polymerization process.

For additional information regarding Toxic in Packaging legislation see http://www.toxicsinpackaging.org/.

[1] CONEG is an organization of nine northeastern states created to study regional issues, particularly those related to economic and environmental conditions and resources of the Northeast.

[2] These include California, Connecticut, Florida, Georgia, Illinois, Iowa, Maine, Maryland, Minnesota, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

[3] For multi-component packages, the four metals are not summed across all the packaging components within a package. The concentration of the four heavy metals, in toto, should be determined for each packaging component and this amount must be within the limits of the act for each component. See CONEG POLICY RESEARCH CENTER, TOXICS IN PACKAGING LEGISLATION: A COMPARATIVE ANALYSIS, App. C1, at 7 (1995).

[4] See AB 455, 2003-2004 Sess. (Cal. 2003) (Toxics in Packaging Prevention Act), codified at CAL. HEALTH & SAFETY § 25214.11-25214.20 (2004).