TOXIC HEAVY METALS IN PACKAGING

The Toxics in Packaging Clearinghouse (TPCH) was formed in 1992 to promote packaging legislation originally drafted in 1989 by the Council of North Eastern Governors (CONEG). The packaging legislation seeks to reduce the amount of heavy metals in packaging and packaging components that are sold or distributed throughout the United States. Specifically, the law is designed to phase out the use and presence of mercury, lead, cadmium and hexavalent chromium in packaging in states that enact the legislation. Since packaging comprises approximately one-third of the waste stream, legislation will reduce the amount of heavy metals entering the municipal solid waste stream, landfills and incinerators.

The packaging legislation, in various forms, has been successfully adopted by nineteen states including California, Connecticut, Florida, Georgia, Illinois, Iowa, Maryland, Maine, Minnesota, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin.

Under the model law, the term "package" refers to a container providing a means of marketing, protection or handling of a product and shall include a unit package, an intermediate package and a shipping container as defined in American Society for Testing and Materials (ASTM) D 996. The term also includes carrying cases, crates, cups, pails, rigid foil and other trays, wrappers and wrapping films, bags and tubs.

A "packaging component" is defined to mean any individual assembled part of a package such as, but not limited to, any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks and labels.

As noted above, four specific heavy metals are targeted for elimination or reduction under the model law: mercury, lead, cadmium, and hexavalent chromium. According to the TPCH, scientific studies have shown that these metals pose significant environmental and health hazards as toxic constituents of incinerator ash and stack emissions or landfill leachate.

Under the packaging legislation, companies are not permitted to sell or distribute any package or packaging component to which any of the four metals has been intentionally introduced. The law also requires that the “incidental presence” of the metals (i.e., the presence of one of the four regulated metals as an unintended or undesired component of the final package) be reduced to 100 parts per million.

In most states that have adopted the packaging laws, the manufacturers and suppliers of packaging and packaging components must furnish a certificate of compliance to customers upon request. This does not apply to the retailer except where the retailer sells its own private-label products. You should consult your state law for specific requirements and applicability determinations.

The TPCH model legislation is often compared to packaging restrictions in Europe. The table below provides a comparison of US and European packaging standards.

Toxics In Packaging U.S./EU Comparison Chart

A recent TPCH study found that fourteen percent of retail packaging failed a screening test for toxic heavy metals may be in violation of state laws. The report entitled, An Assessment of Heavy Metals in Packaging: 2009 Update, found that lead concentrations detected in printing inks and colorants used on plastic bags were 20 times greater than the model packaging law standards.

Lead or cadmium were also reportedly found in flexible PVC packaging that is often used to package home furnishings, pet supplies, cosmetics and toys. TPCH reports that heavy metals are used as heat and ultraviolet stabilizers in PVC resin to control degradation during processing and use.

According to TPCH, Wal-Mart is taking a proactive approach to require suppliers to provide a certificate of compliance with state toxics in packaging laws or submit packaging samples for testing before they can sell their products in Wal-Mart stores.

The packaging restrictions are enforced separately in each state that has adopted the laws. Penalties for non-compliance vary from state-to-state. In New York, the penalties range from up to $10,000 for the first violation to $25,000 per violation for each violation thereafter, with each package on the shelf constituting a separate and distinct violation. In Connecticut, a violation could result in a penalty of $10,000 per day per violation. The TPCH states that companies can expect more aggressive enforcement of state toxics in packaging laws in the future.

The TPCH report, An Assessment of Heavy Metals in Packaging: 2009 Update, is available for download from the TPCH website at packaging_09_update.pdf