- September 01, 2007, By Sheila A. Millar and J. C. Walker, Keller and Heckman LLP
Sustainable. Renewable. Low carbon. Product-to-package ratio. These are only some of the latest buzzwords reflecting renewed interest in reducing the environmental impact of packaging and other products. From Ireland’s tax on plastic bags to city campaigns against bottled water, several trends are converging that suggest the world may be heading toward more global restrictions on packaging. The converting industry’s ability to understand and adapt to these changes ultimately will determine the industry’s success.
What are some of the reasons for new interest in green packaging? First, environmental regulations are shifting. Regulations intended to prevent contamination to soil, air, or water remain, but increasing public concern over the perceived safety of products and constituents has led to a new generation of complex regulations.
Second, globalization has increased the importance of non-US regulatory systems, particularly the European Union (EU) system. Simultaneously, slim legislative majorities in the US Congress have led to gridlock, eroding US international leadership in environmental regulations while leaving a vacuum filled by the states.
Third, major market players are adopting their own standards. These standards flow from corporate responsibility initiatives and a desire to reduce costs through more “sustainable” activities.
Converters seeking to respond to the resurgence of interest in green packaging must ensure compliance with an array of global extended producer responsibility laws and market pressures that require packaging manufacturers to manage environmental impacts from cradle to grave. What are some of the most important developments?
EU Packaging Directive
Directive 94/62/EC on Packaging and Packaging Waste imposes responsibility for minimizing the creation of packaging waste and promoting energy recovery, re-use, and recycling of packaging materials on packaging manufacturers. The directive also restricts hexavalent chromium, lead, and mercury to a sum total concentration of 100 parts/million (ppm) by weight and requires a reduction of “noxious and other hazardous substances and materials” in packaging materials or components to minimize emissions and discharges from incineration or landfill after disposal.
Directive 2004/12/EC amended the Packaging Directive to increase the recycling targets to be met by Dec. 31, 2008, to the following levels:
- 60% overall recovery of packaging waste; and
- 55% minimum and 80% maximum recycling of packaging waste.
On June 1, the EU’s new regulatory system for the registration, evaluation, authorization, and restriction of chemicals (REACH) went into effect. All chemical substances manufactured or imported in the EU in quantities over 1 ton/yr (approximately 30,000 substances) will be subject to special registration and evaluation requirements.
Additives, inks, and dyes are covered. Polymers and intermediates will be exempt, but manufacturing costs are likely to increase, and key ingredients may be restricted.
The legislation is not limited to chemical manufacturers. REACH anticipates suppliers will need to understand the downstream uses of their chemicals to provide customers with accurate risk assessments.
Accordingly, the legislation also regulates how chemical information is shared up and down the supply chain. REACH obligations thus create new potential product liability exposure and likely will result in more pressure in the US for laws imposing disclosure obligations about chemicals used in packaging and other products.
Directive 2002/95/EC on the restriction of the use of certain hazardous substances (RoHS) in electrical and electronic equipment prohibits placing certain categories of new electrical and electronic equipment on the EU market. This includes electronics used in packaging applications containing more-than-specified levels of lead, cadmium, mercury, hexavalent chromium, and the flame retardants polybrominated biphenyl (PBB) and polybrominated diphenyl ether (PBDE).
The directive is intended to 1) enhance the availability and profitability of recycling and 2) decrease negative health impacts on recycling workers from exposures to hazardous substances. Critically, the directive includes an exemption for products or applications for which substitutes are not available currently. These exemptions are subject to periodic review in light of new scientific evidence.
It is a common misconception that uses of lead and other banned substances exempt from the RoHS Directive also are exempt from the Packaging Directive. A separate exemption under the Packaging Directive is required; there is no automatic exemption based on RoHS.
US Toxics in Packaging Statutes
In the US, the intentional use of cadmium, hexavalent chromium, lead, and mercury is banned from use in packaging and packaging components under model legislation proposed by the Source Reduction Council of the Coalition of Northeastern Governors (CONEG). CONEG legislation has been enacted in one form or another in 19 states.1
In addition, the legislation limits the sum total concentration of incidental amounts of these materials to 100 ppm. As with the Packaging Directive, it is incorrect to assume that packaging components that are RoHS-compliant or exempt also are CONEG-compliant or exempt.
Companies also often overlook the CONEG prohibition against “intentional use” and mistakenly assume that using less than 100 ppm total lead, for example, complies with the statutes—it does not. Recent tests illustrate that non-compliant packaging is found in the US marketplace.
On June 20, the Toxics in Packaging Clearinghouse (TPCH) announced the results of random tests of packaging funded under a grant by the US Environmental Protection Agency. Of 355 packages tested, 16% exceeded the 100 ppm limit for heavy metals, with cadmium and lead detected most frequently.
The TPCH identified three reasons that restricted substances are present in packaging in excess of the specified limit well after the laws had been enacted. First, innovations in packaging, such as the use of circuit boards for marketing or other purposes, mean that packaging components are being manufactured with “crossover” technology from industries that may not be familiar with packaging regulations.
The TPCH also noted a certain amount of complacency among manufacturers and distributors as packaging requirements “fell off the radar” due to lax enforcement. As a result, the TPCH will conduct further compliance screening to assess the effectiveness of its outreach efforts. Stepped-up enforcement of these limits is expected.
While companies certainly take notice of government enforcement actions, one of the biggest drivers for green converting may result from programs like Wal-Mart’s “scorecard” initiative. Wal-Mart plans to measure its 60,000 worldwide packaging suppliers on their ability to use less packaging, more effective materials, and to source these materials more efficiently using specific metrics related to environmental impacts. (See p20 and p34 for more on the Wal-Mart scorecard.)
The fundamental lesson here is that Wal-Mart and other retailers want to be seen as leaders in environmental protection without sacrificing cost, convenience, and innovation. Downstream users would rather switch than spend time defending materials or packaging that are perceived to have health or safety issues.
Environmentalists and regulators are counting on this ripple effect from companies seeking to protect their brands to effect a change in supplier attitudes toward a manufacturing ethic based on “sustainability” principles.
Many regulatory and market forces suggest it is time to embrace green—or at least greener—converting, but a final caution applies. Particularly in the US, converters and their customers must exercise care in making environmental claims for packaging products.
The Federal Trade Commission’s (FTC) Guides for the Use of Environmental Marketing Claims set forth the commission’s position on when unqualified environmental claims, including recyclability, biodegradability, and compostability claims, as well as general claims, may be made for products or packaging. The FTC’s Guides and hard-line enforcement activities some years ago are largely responsible for a fall-off in environmental claims.
As new interest in green packaging arises in the marketplace, old claims are resurfacing and new ones are being introduced, like “sustainable,” “low carbon,” and the like. There is no doubt that green sells, as evidenced by the meteoric growth of the natural and organic industry and the proliferation of green claims. Nevertheless, converters should take care to base claims on demonstrable and substantiated environmental performance attributes to avoid contributing to “green fatigue” and a renewed interest in green claims enforcement.
1California, Connecticut, Florida, Georgia, Illinois, Iowa, Maryland, Maine, Minnesota, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.
Sheila A. Millar is a partner and J.C. Walker is an associate with Keller and Heckman LLP, Washington, D.C., which provides legal, regulatory, and scientific advice to help companies bring new packaging materials to market for foods, pharmaceuticals, cosmetics, and other products on a global scale. Contact Millar at 202-434-4143; firstname.lastname@example.org; packaginglaw.com.