Getting Tough on Heavy Metals in Packaging

Date: Sep 01, 2005

Remember the Coalition of Northeastern Governors (CONEG)? Remember the Model Toxics in Packaging legislation? Whether these ring some bells or not, now is the time to make sure that your packaging materials comply with the heavy metal restrictions of these laws. Several of the states that originally enacted this legislation are about to launch a compliance testing program that could result in penalties and even product recalls.

Memory refresher

CONEG, is a coalition of mostly New England states created to study regional economic and environmental issues. In 1989, CONEG developed model legislation designed to reduce the levels of lead, cadmium, mercury or hexavalent chromium in packaging and packaging waste. The idea was to stem the amount of these metals winding up in municipal solid waste streams.

The model legislation has now been adopted by 19 states with some slight variations. It bans 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 and stabilizers.

The model legislation, and most of the legislation actually enacted, also phases out the incidental presence of these metals to trace levels over a period of four years. The sum of the concentrations of all four metals cannot exceed 100 ppm. (In just about all cases, that four year period is now over.) The legislation is intended to apply equally to domestic and imported packaging products.

Compliance testing

Until just a couple of months ago, the states haden't taken any enforcement actions since the laws have been in force. That's changing now as 10 states with these laws have decided to step up manufacturer's awareness of the laws through a compliance program.

These 10 states are members of the Toxics in Packaging Clearinghouse (TPCH), which administers and coordinates implementation of the model legislation. TPCH has started a pilot program, partially funded by the Environmental Protection Agency, in which product packaging will be tested to determine its compliance. The testing will be conducted in retail outlets on products selected either at random or targeted, based on prior knowledge of potential non-compliance. The testing will be conducted with a hand-held analyzer, which uses x-ray fluorescence to identify trace elements.

When test results indicate the heavy metal concentration within the packaging exceeds the legal limits, the company marketing the product will be notified. TPCH will request verification of compliance through both a Certificate of Compliance and test results from a qualified laboratory.

TPCH's stated purpose is to increase awareness of the law, especially in light of the rise in packaging materials produced abroad. It is their hope that, if violations are found, companies will get the word that they need to "start pressuring suppliers to be in compliance."

That word, however, has already started to go out. Connecticut recently issued a Notice of Violation to a dietary supplement company. The company was alleged to have marketed a product in a package that incorporated a battery-powered red blinking light that was lead soldered to a circuit board. It's reported that the company agreed to pull some 100,000 packages off the shelf and repackage another 50,000 units prior to distribution in commerce. The State of Connecticut, in publicizing this enforcement action, also pointed out that violations could result in penalties of up to $10,000 per day per violation.

Used with permission. Copyright FOOD & DRUG PACKAGING, September, 2005.

For further information about this article, please contact George G. Misko at 202-434-4170 or by email at misko@khlaw.com.