United States: Many Manufacturers Not Complying With Toxics In Packaging Laws Face Stiff Fines And Retailers' Bans

Introduction

Manufacturers have been very busy deciphering and meeting new CPSIA requirements, including restrictions on the amounts of heavy metal in their products. Unfortunately, focus on the CPSIA has distracted many manufacturers from the heavy metal limitations applicable to the packaging in which they ship and sell their products. In fact, a new Summer, 2009 study from the Toxics in Packaging Clearinghouse found that 14.2 percent of packaging still contains heavy metals that exceed the Toxics in Packaging regulations in force in many states.¹ In the 19 states that now have Toxics in Packaging Acts, including California and New York, manufacturers face fines of as much as $25,000 for each item that violates each state's respective law.² Some large retailers have also begun enforcing those requirements, and may not hesitate to pull products from their shelves if they discover that a manufacturer's products do not meet the requirements. This article will educate manufacturers and distributors of packaging and packaging components to prevent them from having retailers return their products, and to prevent the imposition of the substantial civil and criminal penalties provided for by the Toxics in Packaging Laws enacted throughout the United States.³

Toxics in Packaging Legislation

In 1989, the Source Reduction Council of the Coalition of Northeastern Governors ("CONEG") set out to decrease the harmful presence of heavy metals entering the environment through packaging materials with its authorship of the Model Toxics in Packaging Legislation (the "Model Legislation").⁴ The Model Legislation provides more stringent requirements for packaging components than similar restrictions under the European Union Packaging Directive and the European Union Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment.⁵

Unlike its foreign counterparts, the Model Legislation prohibits manufacturers and distributors⁶ from intentionally⁷ using any cadmium (cd), hexavalent chromium (Cr⁺⁶), lead (Pb), and mercury (Hg) ("Heavy Metals") when manufacturing⁸ packaging materials sold and distributed throughout the United States and also limits unintentional⁹ cumulative levels of these Heavy Metals to 100 ppm in any package¹⁰ or individual packaging component.¹¹ The laws apply to packaging that is manufactured in states that have adopted the Model Laws or enacted similar laws.¹² It is also applicable to packaging that has been imported into a Model State¹³ from a foreign state and country that has not adopted Toxics in Packaging laws.¹⁴

To comply with the Model Legislation, manufacturers, suppliers, and distributors who use packaging and packaging components must maintain a certificate of compliance authenticating fulfillment of the requirements under the Model Legislation.¹⁵ State laws require manufacturers, suppliers, and distributors to present the certificate of compliance to the state and sometimes also to the public upon request.

A company that violates the Toxics in Packaging laws of a Model State can face substantial civil and criminal penalties.¹⁶ The same is true for companies that import¹⁷ packaging and packaging components into states that have enacted Toxics in Packaging laws.¹⁸ For some states, including California, Connecticut, Illinois, Iowa, Minnesota, and New Jersey, a continuing daily violation constitutes a separate violation.¹⁹ Violations of state Toxics in Packaging laws can also lead to criminal penalties including convictions of misdemeanors and even imprisonment.²⁰

While companies in the Model States are tasked with the responsibility of self-compliance, governmental agencies as well as the Toxics in Packaging Clearinghouse (the "Clearinghouse")²¹ actively monitor the implementation and enforcement of Toxics in Packaging laws nationwide.²²

Over the years, the U.S. Environmental Protection Agency ("EPA") has provided funding for the Clearinghouse to conduct comprehensive test programs to determine compliance levels and promote enforcement of Toxics in Packaging laws. Initially, screening for Heavy Metals was both costly and laborious, requiring packages to be brought into a laboratory and analyzed under scientific conditions.²³ However, modern technological advancements have made the screening process much simpler and much less expensive.

The Clearinghouse has begun to use hand-held, instant-read X-ray Fluorescence guns ("XRF") to screen packaging and packaging components for Heavy Metals.²⁴ If an XRF screen demonstrates that a package does not comply with a state's Toxics in Packaging Laws, the Clearinghouse has alerted the state authorities and has directed the company to immediately discontinue distribution and/or sale of any packaging.²⁵ The Clearinghouse has also mandated that the company prepare and propose a written plan of action to ensure necessary procedures are in place for the removal and future prevention of any unlawful packaging nationwide.²⁶

A. Clearinghouse Enforcement

In 2006, the Clearinghouse alerted California's Department of Toxic Substances Control ("DTSC") that its XRF screening demonstrated that a retailer's shopping bags had a high presence of Heavy Metals.²⁷ As a result, DTSC spent two years prosecuting the retailer, to ensure that it would no longer use shopping bags that did not comply with California's Toxics in Packaging Laws.²⁸ At the conclusion of the DTSC's prosecution, a Consent Order was entered that provided the Clearinghouse with $50,000.00 in funds for its future efforts in preventing Toxics in Packaging.²⁹

In January 2008, the Clearinghouse posted a study of its screening of home furnishing packaging using XRF.³⁰ The Clearinghouse reported that over 80% of the PVC resin bags, which contained bedding, curtains, decorative hardware, shower liners, and tablecloths, had illegal levels of both lead and cadmium.³¹

In May 2008, the Clearinghouse conducted a study, this time, on inks and colorants used in the manufacturing of color plastic and paper bags.³² Again, the Clearinghouse used XRF screening and quickly determined that the stores' grocery bags, mailer bags, and produce and food service bags contained prohibited levels of the Heavy Metals.³³

Conclusion

In light of the active monitoring and prosecution by the Clearinghouse and state agencies, the low cost and ease of screening packaging for compliance, and the severe civil and criminal penalties for violation of a Toxics in Packaging law, manufacturers, distributors, and suppliers should take pro-active steps to ensure compliance with those laws, and to ensure compliance all the way down its supply chain. Law firms well-versed in nationwide Toxics in Packaging laws can provide the necessary guidance for a given product, to insure that a manufacturer's products do not run afoul of governmental or retailer standards, resulting in interruption in the retail supply chain and hundreds of thousands of dollars in governmental penalties.

Footnotes

^* Mark P. Miller is a partner at Wildman, Harrold, Allen & Dixon, LLP. Mark represents manufacturers in product liability litigation, on national, regional and local levels, and advises manufacturers on compliance with applicable product regulations, both in the United States and abroad. He was specially recognized the Legal 500 2009 Directory in the field of Consumer Products litigation. His clients include manufacturers of a wide array of consumer products, medical devices and pharmaceuticals, and industrial and construction products. He has represented clients in clients in matters involving Toxics in Packaging regulations, including those unfairly targeted by prosecutors for products that should not have been covered by the law. Mark can be reached at millerm@wildman.com

^* Tiffany L. Carpenter is an associate at Wildman, Harrold, Allen & Dixon, LLP. Ms. Carpenter's practice focuses on all facets of litigation, including toxic tort litigation. Tiffany can be reached at Carpenter@wildman.com.

1. An Assessment of Heavy Metals in Packaging: 2009 Update, The Toxics in Packaging Clearinghouse, June 30, 2009 Northeast Recycling Counsel, Inc.

2. http://www.toxicsinpackaging.org/comparative_analysis.html . The nineteen states that have enacted Toxics in Packaging Laws include: California, Connecticut, Florida, Georgia, Illinois, Iowa, Maryland, Maine, Minnesota, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

3. An Assessment of Heavy Metals in Packaging: Screening Results Using a Portable X-ray Fluorescence Analyzer, The Toxics in Packaging Clearinghouse, June 20, 2002 Northeast Recycling Counsel, Inc.

4. http://www.toxicsinpackaging.org/adobe/TPCH-fact-sheet.PDF .

5. http://www.toxicsinpackaging.org/tpch_faq.html .

6. http://www.toxicsinpackaging.org/model_legislation.html . The Model Laws define "manufacturer" as "any person, firm or corporation who takes title to goods produced either domestically or in a foreign country, purchased for resale or promotional purposes."

7. Id. The Model Laws define "intentional introduction" as "the act of deliberately utilizing a regulated metal in the formation of a package or packaging component where its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance, or quality."

8. Id. The Model Laws define "manufacturing" as "physical or chemical modification of (a) material(s) to produce packaging or packaging components."

9. Id. Under the Model Laws, "the use of a regulated metal as a processing agent or intermediate to impart certain chemical or physical changes during manufacturing, whereupon the incidental retention of a residue of said metal in the final package or packaging component is neither desired nor deliberate, is not considered intentional introduction for the purposes of this Act where said final package or packaging component is in compliance with subsection c of Section 4 of this Act. The use of recycled materials as feedstock for the manufacture of new packaging materials, where some portion of the recycled materials may contain amounts of the regulated metals, is not considered intentional introduction for the purposes of this Act where the new package or packaging component is in compliance with subsection c of Section 4 of this Act."

10. Id. The Model Laws define "package" as "any container, produced either domestically or in a foreign country, providing a means of marketing, protecting or handling a product and shall include a unity package, an intermediate package or a shipping container as defined in American Society of Testing and Materials (ASTM) specification D 996. 'Package' shall also mean and include such unsealed receptacles as carrying cases, crates, cups, pails, rigid foil and other trays, wrappers and wrapping films, bags and tubs."

11. See footnote 3 supra. Some exemptions exist and are inclusive of some recycled materials.

12. See footnote 4 supra

13. A "Model State" is defined as a state that has adopted the Model Laws or enacted similar laws.

14. See footnote 4 supra

15. Id.

16. See footnote 3 supra.

17. See footnote 5 supra. An "importer" is considered to be a supplier to a purchaser.

18. Id.

19. See footnote 2 supra.

20. Id. Both California and New Hampshire's state laws provide for up to imp

21. The Clearinghouse was formed by CONEG in 1992 to promote the Model Legislation.

22. See footnote 5 supra.

23. See footnote 3 supra.

24. See footnote 4 supra. The Clearinghouse recommends that XRF results be carefully evaluated.

25. Id.

26. Id.

27. http://www.toxicsinpackaging.org/docs/CA_SEP_announcement.pdf

28. Id.

29. Id.

30. http://www.toxicsinpackaging.org/adobe/home_furnishings_fact_sheet_jan_2008.pdf

31. Id.

32. http://www.toxicsinpackaging.org/adobe/shopping_mailer_produce_bags.pdf

33. Id.

Reproduced with permission from Toxics Law Reporter, 24 TXLR 1410 (Dec. 17, 2009). Copyright 2009 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.