Testing for Toxins in Packaging

Legal Briefs

In September the Toxics in Packaging Clearinghouse (TPCH) plans to commence a pilot testing program, funded by the Environmental Protection Agency (EPA), to conduct random tests of product packaging for toxic materials that violate state laws. The project is of direct interest to members of the converting industry, their suppliers, and their customers.

Ten states, all members of the TPCH, will participate in the testing. The packaging products that will be tested as part of the pilot program were submitted by TPCH member states. They include products that are considered “suspect,” in addition to products chosen at random from grocery, hardware, and other stores.

Testing product packaging for prohibited toxics apparently is made fairly easy now with new technology—a hand-held X-ray gun that provides results in minutes—which substitutes for expensive and time-consuming laboratory testing.

The testing program is meant to increase awareness of the “Toxics in Packaging” laws, as they sometimes are known, which prohibit the intentional sale or distribution of a package or packaging component (including printing inks) containing lead, mercury, cadmium, and/or hexavalent chromium as a means of reducing the amount of toxics in municipal solid waste landfills. The laws are based on model legislation adopted by the Source Reduction Council of the Coalition of Northeastern Governors (CONEG); 19 states have passed some version of the 1989 model legislation (California, Connecticut, Florida, Georgia, Illinois, Iowa, Maryland, Maine, Minnesota, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin).

The CONEG model bill sets forth concentration levels for the above-named toxic compounds. Now these compounds may not be present in concentrations that exceed 100 ppm by weight (0.01%). Although only 19 states have adopted CONEG-inspired toxics legislation, the number is large enough to affect the nationwide distribution of packaging, particularly when you look at the size of the markets represented by the populations of the states involved.

One feature of the legislation is that responsibility for compliance lies not only with manufacturers of packaging and packaging components but with suppliers of packaging and packaging components, and with product manufacturers or distributors who use packaging. Moreover, the CONEG legislation was said to be the inspiration for elements of EU legislation (Directive 94/62/EC).

This new pilot program follows a well-publicized notice of violation issued by the state of Connecticut to the manufacturer of a popular dietary supplement. The dietary supplement was marketed in a noncompliant carton with a blinking red light. The light was powered by a battery attached to a printed circuit board with lead-based solder. The manufacturer had no knowledge of the requirements under the law. Several of the TPCH and CONEG states, including Connecticut, also have special laws regarding batteries, which may have been the trigger for the initial investigation.

After being notified, the supplements manufacturer had to take various measures to come into compliance with the law, and six more states became involved in compliance assurance.

The manufacturer had to halt sales and distribution of the product, replace the noncompliant packaging already on retail shelves, and post information on its Web site to alert customers of the problem with the packaging and how to properly dispose of it. Customers also could send the printed circuit board with the blinking red light back to the manufacturer for proper disposal.

The TPCH also is concerned with international packaging imports that violate these state laws, despite the fact that under the model legislation manufacturers of packaging and packaging components are required to furnish certificates of compliance upon request to customers. International manufacturers tend to be unaware of these packaging requirements, TPCH staffers say, and officials hope to shed light on how prevalent the problem is at the conclusion of the pilot program.

The testing program undoubtedly will result in more scrutiny of the heavy metals content of packaging products. Consequently, all converting industry members should be aware of CONEG requirements and this new testing program.

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; This email address is being protected from spambots. You need JavaScript enabled to view it.; packaginglaw.com.

To read more of Sheila A. Millar’s Legal Briefs columns, visit our Legal Briefs Archives.

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