Toxics In Packaging: Are You Protected?

As many direct marketers wrestle with the new Proposition 65 regulations (set to go into effect on August 30,
2018), there are other state laws relating to product safety as to which they should be aware.  We address here the nineteen (19) states that have enacted so-called “toxics in packaging” laws that regulate the presence of four toxic chemicals in packaging and packaging components.

TOXICS IN PACKAGING: BACKGROUND

The genesis of the toxics in packaging laws was a determination by states that certain packages and packaging materials, including the inks and dyes used for coloration, contained toxic heavy metals.  Some of these metals were introduced intentionally — lead, for example, could help achieve a rich green coloration in plastics.  Some found their way into packaging inadvertently, including during the recycling process, in which source materials might have contained one or more of these toxins.

There are variations in these laws from state to state, but, in general, most forbid completely the intentional introduction into packaging or packaging components of lead, cadmium, mercury or hexavalent chromium, and limit strictly the incidental presence of such toxic chemicals.  Non-compliance creates serious risks, including state enforcement (which can occur on a coordinated basis) leading to fines and criminal prosecution, as well as the potential for class action lawsuits.

WHAT ARE PACKAGING AND PACKAGING COMPONENTS?

Packaging is broadly defined to include all product containers, everything from shipping containers to crates, trays, wrappers, films, and bags — in short, any container providing a “means of marketing, protecting or holding a product.”  The laws also apply to packaging components, everything from interior or exterior cushioning, strapping, closures, inks, and labels.

WHO IS COVERED?

Everyone in the chain of distribution of packaging and packaging components must comply with the law, from those who initially produce the packaging and packaging components to those who supply, distribute, or sell packaging and packaging components or the products they contain.  Thus, in the case of plastic bags often used to ship products by mail, everyone involved in the manufacture, supply, or distribution of those bags and their constituent parts (including labels) must comply with applicable toxics in packaging laws.

WHAT IS PROHIBITED

Generally speaking, four listed metals — lead, cadmium, mercury or hexavalent chromium — cannot be introduced intentionally into any package or packaging component.  In this regard, these zero-tolerance laws are even stricter than their European counterparts.  In all other cases, the “sum of the concentration” of lead, cadmium, mercury, and hexavalent chromium generally cannot exceed 100 parts per million by weight (0.01%).  There are certain exceptions which have variations from state to state, including situations where the toxins are added for health and safety reasons, or where the state has agreed (via a petition process) to allow the presence of some or all of the chemicals because there has been a showing of no feasible alternatives.

COMPLIANCE

For direct marketers, there fortunately is a compliance approach that provides a degree of insulation from liability, although you should check your local laws.  Specifically, manufacturers and suppliers of packaging and packaging components are required to furnish a “certificate of compliance” upon request of purchasers. The purchaser must then retain this certificate for as long as the package or packaging component is in use, and must be provided to the states and members of the public upon request.

Sample certificates are available from the state-run toxics in packaging clearinghouse.  A sample contractual provision is also available for inclusion in contracts and purchase orders.  If you obtain and retain these certificates in good faith, there is a substantial argument against being subject to penalties or other sanctions.  Some states, like Connecticut, limit the liability of a purchaser who obtains a certificate of compliance.

Interestingly, the New York Supreme Court, Appellate Division (First Dep’t), recently refused to dismiss a lawsuit against a plastic bag supplier and its managing director for fraudulently inducing the purchase of those bags through the provision of false certificates of compliance.  M.T. Packaging, Inc. v. Fung Kai Hoo, 162 A.D.3d 508 (N.Y. App. Div. 2018)

A FINAL WORD

For most direct marketers, obtaining a certificate of compliance from suppliers of packaging and packaging components is the first and most important line of defense.  Any supplier who is unfamiliar with the requirement, or declines to provide a certificate, should send up red flags.

There are distinctions between these laws that must be examined to ensure that the general principles (stated above) are not different or abrogated by a specific jurisdiction.  California, for example, makes illegal not just the sale of offending materials, but merely the offering for sale of such items.  Some, like Iowa, exempt glass and ceramics, which are generally covered by other state laws.  Penalties vary as well, with different civil and potentially criminal consequences for violations.  California, for example, imposes a civil penalty of up to $25,000 per violation with each day’s continuance a separate violation, as well as criminal liability with imprisonment of up to 3 years.  Injunctions are available in some states.