Minnesota Law Expanding Standards for Compostable Food Packaging

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This May the Minnesota state legislature amended the Standards for Labeling Plastic Bags. The law which previously was limited to plastic bags will now cover food and beverage products and other food packaging. Products subject to the law include any product used to wrap, package, contain, store, prepare or consume a food or beverage.

Additionally, the amendments clarify requirements for compostable claims to reduce misleading product claims and confusion around which product may be labeled as compostable. Beginning in January 2025, products sold in Minnesota labeled as compostable must be

(1) made solely of wood with no additives or coatings;

(2) made solely of paper with no additives or coatings; or

(3) meet the applicable ASTM standard

  1. for plastics designed to be aerobically composted in municipal or industrial composting facilities (ASTM D6400); or
  2. for items that incorporate plastics and polymers as coatings or additives with paper and other substrates designed to be aerobically composted in municipal or industrial facilities (ASTM D6868).

Starting January 1, 2026, all products sold in the state which are labeled compostable must be certified by a nonprofit third party capable of performing the appropriate product analysis. Under the law, products may not be labeled biodegradable until an ASTM standard specification is adopted for measuring biodegradation. *

The law specifically specifies that manufacturers, distributors, and wholesalers are strictly prohibited from selling or offering for sale a covered product with “biodegradable” or “compostable” claims unless the product is certified as meeting the requirements by a third party.  The third party must be a nonprofit that, as its primary focus of operation, promotes the production, use, and appropriate end of life for materials and products that are designed to fully biodegrade.

*It is unclear whether the individuals who drafted the legislation were aware of the existing ASTM standards on measuring biodegradation of plastics in landfills such as the standard for determining anaerobic biodegradation of plastic materials under high-solids anaerobic-digestion conditions (D5511-18).

EPA Proposes SNURs for Flame Retardants

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EPA has proposed significant new use rules (SNURs) for three flame retardants under the Toxic Substances Control Act (TSCA). The three flame retardants are tris(2-chloroethyl) phosphate (TCEP), tetrabromobisphenol A (TBBPA), and triphenyl phosphate (TPP).  All three substances are currently undergoing TSCA risk evaluations.  The proposed significant new uses are manufacture (including import) or processing for any use, except for those uses being considered in the risk evaluations.  In the Federal Register notice, EPA explained that significant new uses would encompass the following categories:

  • Manufacture and processing for uses that have ceased;
  • Manufacture and processing for uses that have not yet ceased but for which all manufacture and processing has ceased; and
  • Manufacture and processing for uses for which EPA has no information demonstrating that the use has previously commenced in the United States.

The Agency sought public comment on its description of the significant new uses for the chemicals identified, including specific documentation of ongoing uses not identified by the Agency in the risk evaluation scope documents.

EPA noted that “The issuance of a SNUR is not a risk determination itself, only a notification requirement for ‘‘significant new uses,’’ so that the Agency has the opportunity to review the [Significant New Use Notification] for the significant new use and make a TSCA section 5(a)(3) risk determination.”  In other words, “Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination under TSCA section 5 before the manufacture (including import) or processing for the significant new use can commence.”

In its discussion of the significant new use determination, EPA explained that the Agency considered information about the toxicity or expected toxicity of these substances, likely human exposures and environmental releases associated with possible uses, and the four factors listed in TSCA section 5(a)(2):

  • The projected volume of manufacturing and processing of a chemical substance,
  • The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance,
  • The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance and
  • The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

According to the Federal Register Notice, current uses of TCEP are as follows:  TCEP is imported into the United States and processed for commercial use in paints and coatings, for industrial or commercial use in polymers for use in aerospace equipment and products, and for commercial use as a laboratory chemical.

EPA found that TBBPA is currently manufactured (including imported) in the United States. It is processed as a reactant or intermediate to create other flame retardants; incorporated into formulation, mixture, or reaction products; and incorporated into articles. The Agency noted that the predominant uses for TBBPA are as a reactive flame retardant in electrical and electronic products and as an additive flame retardant in electrical and electronic products. In addition, epoxy resin containing TBBPA can be used in adhesives, laminate for aviation and automobile interiors and building/ construction materials.

The Agency reported that TPP is manufactured (including imported) in the United States.  It is processed as a reactant; incorporated into formulation, mixture, or reaction products; and incorporated into articles.  Commercial uses include in plastic and rubber products and in paints and coatings. The chemical is also used in lubricants and greases.  In addition, consumer uses were reported in foam seating and bedding products.

Comments can be viewed in docket EPA–HQ–OPPT–2023–0012 at regulations.gov.

Environmental Group Petitions for Review of EPA’s New Confidential Business Information Rule

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Environmental Defense Fund (“EDF”) has filed a petition in the US Court of Appeals for the District of Columbia requesting a review of EPA’s recently finalized rule Confidential Business Information Claims Under the Toxic Substances Control Act (TSCA).  Petitioner’s Statement of Issues was filed in August.  EDF raises the question of whether EPA’s rule was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law because it …

 

  • Would allow confidential business information (“CBI”) claims for types of information TSCA makes categorically ineligible for CBI protection;
  • Would not require substantiation or EPA review of a CBI claim that was asserted before the chemical’s commercialization, for information that identifies the specific chemical identity. once the chemical is commercialized;
  • Unlawfully adopts a regulatory definition of “health and safety study” that is narrower than the TSCA definition, denying TSCA-mandated public access to important information on chemicals;
  • Give the Agency unlawfully broad discretion through its regulations where TSCA imposes a duty upon the Agency; and
  • Reduces the transparency previously required under EPA’s CBI review procedures without adequate justification.

 

EDF has not yet filed a memorandum in support of its petition.

Clothing Accessories Companies Penalized for False Made in USA Claims

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In August 2023, the Federal Trade Commission (FTC) finalized a complaint and order against Chaucer Accessories, Inc. and two other companies owned by Thomas P. Bates for falsely labeling belts, shoes, and other products as “Made in the USA” (MUSA). The order includes a monetary judgment of $191,481.

According to FTC, the New England-based companies regularly claimed that certain products were MUSA, even though these products were wholly or largely imported. In other instances, the companies claimed that certain belts were “Made in the USA from Global Materials,” when in reality, the companies merely affixed buckles to imported belt straps. FTC alleged three violations of section 5(a) of the Federal Trade Commission Act: one violation for the false MUSA claims, one violation for the false MUSA from global materials claim, and one violation for distributing the false claims to resellers for their use in the resale of the products.

In addition to the monetary judgment, the order places restrictions on the companies and Bates on making unqualified MUSA claims, prohibits them from misrepresenting their products’ country of origin or providing others the means to make misrepresentations and imposes requirements for qualified MUSA claims and assembly claims. The companies must also notify affected customers of the violations and provide FTC with sufficient customer information for the Commission to administer customer redress.

Colgate Faces False Advertisement Suit Over Recyclable Claims

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A class action lawsuit has been filed in a California federal court against the Colgate-Palmolive Company (“Colgate”), alleging the company falsely advertises its Colgate and Tom’s of Maine branded toothpaste tubes as recyclable. The complaint alleges that Colgate’s claims are a violation of the Federal Trade Commission’s Green Guides, which prohibits a product from being called recyclable “unless there is an established recycling program, municipal or private, through which the product will be converted into, or used in, another product or package.”

The complaint also alleges California Business and Professions Code violations, which make it “unlawful for any person to make untruthful, deceptive, or misleading environmental marketing claims.”

A number of Colgate branded products, including but not limited to its popular products Colgate MaxFresh Toothpaste, Colgate Optic White Toothpaste, and Colgate Sensitive Toothpaste, feature the three-arrow recycling symbol atop the language “Recyclable Tube.” The company’s Tom’s of Maine product packaging advertises its toothpaste tubes as “The First of its Kind Recyclable Tube.” This language is used on over ten of its toothpaste products. None of the packaging of these products, Colgate or Tom’s of Maine, includes language that limits or qualifies the recyclability claims.

Additional recyclability claims are made on the brands’ websites. The Tom’s of Maine website features the following claims, which the Plaintiff alleges are misrepresentations:

  • “Recyclable Tube”
  • “Recycle Me!”
  • “Buy Smart – By reaching for this toothpaste tube you’re actively making a difference.”
  • “Recycle It – Our recyclable tube is not meant for a landfill – it gets turned into useful products.”
  • “As the leaders in the oral care industry, we wanted to create a recyclable alternative.”

While the toothpaste tubes are theoretically recyclable, a consultant at the Association of Plastic Recyclers stated, “[f]or many facilities in the US, the company’s new recyclable tubes are indistinguishable from those made from more common plastics, prompting recyclers to reject them. The old tubes could cause contamination if consumers put them in the recycling bin, so it’s easier for recycling facilities to reject toothpaste tubes across the board.”

In support of its argument, the complaint cites a recent Bloomberg article discussing the accuracy of Colgate’s claims with two solid waste management companies operating in California. (The two companies, Waste Management, Inc. and Republic Services, account for more than 40 percent of recycling services provided to consumers in California and about 25 percent of the recycling services on a national scale.) The companies highlighted that toothpaste tubes “are not in its list of acceptable items” and that there is serious concern about contamination from leftover toothpaste that remains in the tube.

According to the complaint, Colgate is fully aware that its products end up in landfills or are incinerated because recycling facilities do not accept its products. Colgate has even gone so far as to release a video on its website stating as much and explaining that the company is “continu[ing] the work beyond technically recyclable toward acceptance of tubes in recycling centers.” If recycling centers do not accept toothpaste tubes, their recyclability is irrelevant, and labeling and advertising their products as recyclable is false, misleading, and deceptive to consumers and members of the public seeking to make environmentally conscious purchasing decisions.

Plaintiffs seek an injunction on the sale of these products until such time the labeling and advertising language can be modified to remove recyclability language or alternatively to include a qualified claim that accurately states the availability of recycling programs. To be in compliance with the Green Guides’ environmental marketing requirements, a company is only permitted to make unqualified recyclable claims “[w]hen recycling facilities are available to a substantial majority of consumers or communities where the item is sold.” The Guides further clarify a substantial majority to mean at least 60 percent, and that “[w]hen recycling facilities are available to less than a substantial majority of consumers or communities where the item is sold, marketers should qualify all recyclable claims.”

Additionally, Plaintiffs are seeking compensatory and statutory damages.

PFAS Class Action Brought Against Sports Drink Company

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A consumer class action lawsuit has been filed against Biosteel Sports Nutrition, Inc. in the Eastern District of New York, alleging that the company’s BioSteel Blue Raspberry flavored sports drink contains per- and polyfluoroalkyl substances (“PFAS”). Defendant’s products are marketed as healthy sports drinks, using language such as “clean, quality ingredients,” “designed with sustainability in mind,” “no artificial flavors/colors,” and “good for you and the environment.” The product packaging additionally claims that the product is “highly regarded for its premium ingredients and zero sugar formula.”

Plaintiffs claim that based on this language, they believed the product to be a healthy sports drink, but the presence of PFAS directly contradicts Biosteel Sports Nutrition’s marketing claims. The suit alleges violations of the New York General Business Law § 349, et seq., which prohibits deceptive acts and practices in business, violations of New York General Business Law § 350, et seq. prohibiting false advertising, breach of express warranty, fraud, constructive fraud, and unjust enrichment.

On August 4, 2023, the company filed a motion to dismiss, claiming that Plaintiff’s testing of its product was insufficient to demonstrate that PFAS substances are present in its products. The motion claims the testing allegations are “devoid of any details regarding the methodology or sample used.” Additionally, according to Biosteel Sports Nutrition, this information was not within the complaint or the amended complaint.

EPA Requests Information on Addressing PFAS in the Environment for the Superfund Program

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EPA has published a notice of proposed rulemaking, Addressing PFAS in the Environment, asking for public input, which the Agency will use to develop future per- and polyfluoroalkyl substance (PFAS) regulations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Agency asked for information on the potential future hazardous substance designation of a number of PFAS, categories of PFAS, and several PFAS precursors.

Request for Public Input Regarding Potential Future Hazardous Substance Designation of Seven PFAS

EPA had previously proposed designating PFOA and PFOS and their salts and structural isomers as hazardous substances under CERLA. The present notice requested feedback as to whether the agency should initiate action designating an additional seven PFAS and their salts and structural isomers or a subset thereof as CERCLA hazardous substances as well. The seven PFAS being considered for designation are:

  • Perfluorobutanesulfonic acid (PFBS), CASRN 375–73–5
  • Perfluorohexanesulfonic acid (PFHxS), CASRN 355–46–4
  • Perfluorononanoic acid (PFNA), CASRN 375–95–1
  • Hexafluoropropylene oxide dimer acid (HFPO–DA), CASRN 13252–13–6
  • Perfluorobutanoic acid (PFBA) CASRN 375–22–4
  • Perfluorohexanoic acid (PFHxA) CASRN 307–24–4
  • Perfluorodecanoic acid (PFDA) CASRN 335–76–2

EPA asked interested parties to submit information on whether any of these compounds may present substantial danger to public health or welfare or the environment. Such information could include data on mobility, persistence, and prevalence.

Request for Public Input Regarding Potential Future Hazardous Substance Designation of Precursors to PFOA, PFOS, and PFAS

The Agency is also considering initiating action that would designate certain PFAS precursors as hazardous substances under CERCLA. To make this determination, EPA requested information to help the Agency identify compounds that degrade to these PFAS through environmental processes such as biodegradation and hydrolysis.

Request for Public Input Regarding Potential Designation, or Designations, of Categories of PFAS as Hazardous Substances

Additionally, EPA is considering initiating action that would designate groups or categories of PFAS as CERCLA hazardous substances. These groups or categories would be based on characteristics that determine risk to human health and the environment, such as chemical structure, physical and chemical properties, mode of toxicological action, and precursors or degradants. To inform its decision-making, the Agency solicited the following information:

  • Published scientific literature that can inform whether categories of PFAS could or could not be designated as hazardous substances. This could include findings on the similarities or differences of a specific characteristic among PFAS. Also useful would be data on the relationship between different characteristics, such as the relationship between chemical structure and specific chemical, physical, or toxicological properties.
  • Other information that could inform EPA’s determination of whether to designate one or more categories of PFAS as hazardous substances.
  • Information that would contribute to economic analysis of the potential costs and benefits, including impacts on small entities, associated with a potential rulemaking designating categories of PFAS as hazardous substances. (Although CERCLA section 102(a) precludes EPA from taking cost into account in the designation of a hazardous substance, the Agency is requesting this information to help the Agency understand the potential costs and benefits associated with any potential future regulatory action.)

The deadline for submitting comments was extended from June 12 to August 11, 2023, during which period over 600 comments were submitted. The comments can be reviewed here.

EPA Releases Draft IRIS Assessment of PFHxS and Related Salts

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On July 24, 2023, EPA released a draft IRIS Toxicological Review of Perfluorohexanesulfonic Acid (PFHxS) and Related Salts.  Comments on the draft assessment will be accepted through September 22, 2023.

The IRIS assessment found that, given sufficient exposure conditions, PFHxS is likely to cause thyroid and developmental immune effects in humans.  Other evidence suggests but is insufficient to infer that PFHxS exposure might cause teratological, hepatic, neurodevelopmental, and cardiometabolic effects in humans.  EPA concluded that there is inadequate information to assess whether PFHxS exposure can result in hematopoietic, reproductive, renal, and carcinogenic effects.

PFHxS is one of three PFAS currently undergoing IRIS assessments, along with PFNA and PFDA.  EPA previously published final IRIS assessments for two other PFAS: PFBA in December 2022 and PFHxA in April 2023.

Better Business Bureau Challenge Results in Clarifying Disclosure in Antimicrobial Toilet Seat Advertising

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In response to a challenge initiated by Bemis Manufacturing Company, the National Advertising Division (NAD) of BBB National Programs has ruled that Ginsey Industries, Inc. needs to include additional clarifying language to validate the assertions made about the antimicrobial safeguards offered by its Clorox Antimicrobial range of toilet seats. (NAD did not find any issues with the underlying efficacy of the antimicrobial properties, solely how the antimicrobial benefits were conveyed to consumers.)

During the course of this challenge, Ginsey voluntarily committed to undertake the following measures:

  1. Incorporate a disclosure (a statement for clarification) onto its product packaging, advertising materials, and all descriptions of products featuring the term “antimicrobial.” This statement would read as follows: “This product does not provide protection against bacteria, viruses, or other disease organisms. It is important to thoroughly clean and wash this product before and after each use.”
  2. Revise all online listings of its products to eliminate the depiction of a shield containing an antimicrobial checkmark emblem positioned within the Clorox chevron logo.

NAD also recommended that Ginsey adjust its advertising to guarantee the prominent visibility of the clarifying statement. This recommendation included the following steps:

  1. Modify the advertising on its official website by relocating the clarifying statement in close proximity to any “antimicrobial” claims that trigger its usage.
  2. Collaborate with retailers to apply similar alterations to the advertising materials for its products on retail websites.

Additionally, NAD proposed that the clarifying statement should be prominently displayed and positioned in close proximity to any assertions that promote Ginsey’s products as having antimicrobial properties or containing such attributes. This recommendation extended to situations where such claims were associated with the well-known Clorox chevron logo on third-party websites.

DuPont De Nemours Inc. Sues EPA Regarding GenX Test Order

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Earlier this year, the US Court of Appeal for the Third Circuit ordered EPA to provide documentation regarding the Agency’s decision to order DuPont De Nemours Inc. to provide information on GenX chemicals through two section 4 test orders under the Toxic Substances Control Act (TSCA). DuPont brought this case to challenge the testing requirements imposed on the company, asserting that EPA had incorrectly identified the company as a manufacturer of the chemicals identified in the test orders:  hexafluoropropylene oxide (also known as trifluoro(trifluoromethyl)oxirane) and 6:2 Fluorotelomer sulfonamide betaine, two GenX chemicals. The test orders required testing on the inhalation effects toxicity of the chemicals in order to enable EPA to further understand protentional risks posed to human health and the environment. In addition to the cost of the toxicity studies, the manufacturers subject to the orders were assessed a fee of $11,650 to be split evenly amongst them.

After receiving the order to provide documentation, EPA requested several time extensions, but eventually stipulated to an agreement dismissing the case. The motion filed in May 2023 released DuPont from the test orders on 6:2 fluorotelomer sulfonamide betaine and hexafluoropropylene oxide. The Court then dismissed the case.