Driven by the continuous demand of more eco-friendly packaging materials for food and beverage products, there is a growing interest in the use of recycled packaging as part of a company’s sustainable initiative. Businesses, however, are well advised to pay close attention to the regulatory issues on the horizon that are presented by the use of recycled materials in food and beverage packaging.

On the federal level, the U.S. Food and Drug Administration (FDA) exercises jurisdiction over food packaging materials. FDA considers each proposed use of recycled plastic on a case-by-case basis and issues informal advice (“no objection letters”) as to whether the recycling process is expected to produce plastic or paper suitable for food-contact applications. While the FDA review process can be time and resource consuming, it is the state laws that pose the most challenges for the sustainable packaging industry.

In particular, under the Model Toxics in Packaging Legislation, a national environmental initiative to reduce the heavy metals in solid waste through state legislations, the combined levels of lead, cadmium, mercury, and hexavalent chromium in packaging materials are required not to exceed 100 ppm. A total of 19 states have adopted the model legislation. The levels can present potential challenges to recycled glass because it typically contains higher levels of heavy metals than virgin glass. To date the model regulations have overlooked because the glass matrix encapsulates the heavy metals, making them incapable of migrating into the beverage. Why does recycled glass contain higher levels of heavy metals? It likely is a result of consumers putting crystal, light bulbs, and industrial glass into the recycling stream.

Another state law of note is California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65). Under Proposition 65, businesses are required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone in California to a listed chemical. Violations of Proposition 65 are subject to civil penalties. Proposition 65 warning requirement for two chemicals commonly found in food service wares – PFOA and PFOS becomes effective in November 2018. Companies selling PFOA/PFOS-containing food packaging materials in California are vulnerable to private litigants or “bounty hunters” who can bring private lawsuits to enforce the Prop 65 warning requirements.

In addition to the state laws, we also expect consumer interest groups such as the Center for Science in the Public Interest (CSPI) to continue their campaign against the use of certain chemicals in packaging. Chemicals including heavy metals, PFOA/PFOS, BPA, and PAHs in the packaging materials will continue to be portrayed as poster child for “bad chemicals.”

In this year’s edition of Consumer Horizons, the Hogan Lovells global Consumer team identifies trends that will impact food and beverages companies, fashion and luxury goods producers, retailers, consumer electronics manufacturers, and other consumer companies throughout 2019.

Download Consumer Horizons 2019 by registering here.

Photo of Martin Hahn Martin Hahn

Partner, Washington, DC

Martin Hahn uses his background in food technology and his comprehensive understanding of the laws governing the food industry to navigate clients through the myriad regulatory and business issues impacting the industry from farm to table. He recognizes the demands placed on his clients and finds innovative and creative solutions, particularly when responding to observations raised by regulators  during inspections. Whether the issue involves obtaining the authorization of a new food or dietary ingredient, complying with manufacturing requirements, labeling or advertising, product recalls, or enforcement, Martin serves as an effective advisor and advocate.

Martin’s career has touched on almost every issue impacting the food industry. He has a comprehensive understanding of the laws affecting the labeling and advertising of foods, dietary supplements, infant formulas, medical foods, and foods for special dietary use. He helps clients anticipate new trends and develop the data that is needed to distinguish their products from others on the market. With his understanding of science and technology in the food industry, Martin provides assistance in obtaining regulatory authorizations to market new food ingredients, food packaging materials, and dietary ingredients. He also assists clients in responding to proposed regulations and draft guidance, as well as, tracks and keeps his clients apprised of the latest trends in class action law suits and helps clients anticipate new regulatory initiatives.

Martin grew up on a farm and worked in food processing plants before going to law school. His hands-on experience in the field and degree in food technology allow him to better understand the challenges his clients face in complying with the laws impacting food manufacturing. He understands Hazard Analysis Critical Control Point (HACCP) and the regulations under the Food Safety Modernization Act (FSMA).

Photo of Xin Tao Xin Tao

Senior Associate, Washington, DC

With a strong understanding of life sciences, Xin Tao works closely with clients in the food and drug industries to navigate the evolving regulatory environments and develop innovative strategies to commercialize products made with emerging technologies both in the U.S. and China.

Xin’s previous work experience as a research biochemist informs his science-based food and drug law practices. His unique ability in understanding and interpreting the complex scientific issues as they relate to the governing legal and regulatory requirements helps clients with all phases of product development, manufacturing, and marketing. His practice focuses on novel food and drug applications that require U.S. Food and Drug Administration (FDA) review and FDA current good manufacturing practice (cGMP) compliance for foods, dietary supplements, and pharmaceuticals.  Born and raised in China, Xin is well-equipped to assist global companies to adapt to China’s National Medical Products Administration’s (NMPA, formerly known as China Food and Drug Administration or CFDA) ever-changing regulatory regime.  Xin is increasingly expanding his knowledge of California’s Proposition 65 (Prop 65) as it pertains to his clients.

Xin is actively involved in a number of organizations that serve Chinese legal and life sciences professionals in the Washington, D.C. region, including the Sino-American Pharmaceutical Professionals Association and the Washington, D.C. Chinese Legal Association. Xin is a frequent speaker and contributor to industry publications in both the United States and China.

During law school, Xin worked as a regulatory scientist at an international law firm and served as an executive editor of the Georgetown Environmental Law Review.