New York State Green Procurement Program Response to Comments on Proposed Amendments to the Specification on Single Use Food Containers

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Randell Black
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1 New York State Green Procurement Program Response to Comments on Proposed Amendments to the Specification on Single Use Food Containers Background: In April 2017, the Interagency Committee on Sustainability and Green Procurement tentatively approved and posted for public comment amendments to the existing green specification on single-use food containers. This action was prompted by information provided to DEC and subsequently confirmed through testing that certain compostable products offered by State preferred sources and contractors are likely to contain perfluorinated chemicals (PFCs), which are related, but not identical to, the chemicals that have contaminated drinking water in Hoosick Falls and Newburgh. The Committee determined that it was desirable to move quickly to change the specification, as the original version required agencies to purchase compostable products. The amendments: 1) establish the purchase of reusable containers as the first priority; 2) establish the purchase of compostable ware as the second priority, but require agencies to avoid products containing PFCs; and 3) establish food containers that are recyclable as the third priority, but require agencies to avoid polystyrene. Commenting Entities: Industry representatives: American Chemistry Council, NYS Chemistry Council, FluoroCouncil, and Dart Container Corporation. Environmental and health advocacy organizations: Clean & Healthy New York (plus 39 additional signatories) and Green Inside and Out. In general, advocacy organizations are supportive of the amendments. Industry representatives generally oppose the amendments, with the bulk of their concerns focused on the requirements to avoid PFCs and polystyrene. Issues raised: 1. Scope of the Specification Comments: Industry requests that the specification be clarified to indicate whether it covers service locations, retail locations, processing locations, or all of the above. In addition, the specification should clearly indicate whether it covers the packaging used to ship food containers when they are empty, or when they contain food. The desirability of reusable and compostable containers is different for containers used to ship food as compared to those used to serve food. Response: The specification is meant to apply to containers and wrappers that are used to serve food to customers or clients at food service locations such as cafeterias, not to the containers or packaging used to ship food from food processors and sold at retail locations such as grocery stores. Recommendation: Amend the specification to clarify the products and packaging covered, making it clear that it applies only to empty containers and wrappers that are used by food service operations. It does not apply to packaging that has been applied to food by processing facilities or that are sold at retail locations. Special packaging requirements do apply to the packaging used to ship empty containers and wrappers to food service locations prior to use. 2. Safety of Short-Chain Perfluorinated Chemicals (Short-Chain PFCs) Background: In 2006, the U.S. Environmental Protection Agency (EPA) launched its perfluorooctanoic acid (PFOA) Stewardship Program, under which major manufacturers phased out the use of certain long-chain perfluorinated chemicals (PFCs) of concern. In 2011, the major manufacturers of PFCs used in food packaging voluntarily ceased their use of certain long-chain chemicals. In a series of actions between 2010 and 2016, the U.S. Food and Drug Administration (FDA) revoked its previous approval of the use of long-chain PFCs in single use food containers and packaging. To replace these 1

2 chemicals, manufacturers developed short-chain alternatives, which are used to make single use food containers and packaging, particularly those made from molded fiber, less prone to leaking. A few short-chain PFCs are currently approved by the FDA for food contact use. Comments: Industry draws a clear line between long- and short-chain PFCs, stating that concerns about short-chain PFCs are not supported by scientific evidence. They point to a bibliography of over 200 studies posted on their website which demonstrate that short-chain PFCs behave very differently, and have a much more favorable health and environmental profile, as compared to longchain PFCs. They further state that it is inappropriate for the Interagency Committee to question the safety of materials the FDA has approved. Advocates applaud the State s decision to avoid the use of products containing PFCs. They state that while short-chain PFCs may be less bioaccumulative, they are just as persistent in the environment, and due to their smaller size, are better able to migrate from packaging, like microwaveable popcorn bags, into food. They cite the 2012 Madrid Statement on Poly and Perfluoroalkyl Substances, signed by more than 200 scientists, which called on the international community to limit the production of poly- and perfluoroalkyl substances (PFASs), which are a large class of PFCs that includes the types used in food containers and packaging, and develop nonfluorinated alternatives. The Statement further recommends that government procurement avoid products containing PFASs whenever possible. Response: As stated in the draft amendments to the specification, research into the health risks associated with both long- and short-chain PFCs is ongoing. According to a July 2016 fact sheet issued by the National Institutes of Health (NIH), the concerns driving continued study of PFCs as a class include widespread exposure to humans, persistence in the environment, observed toxicity of certain PFCs in animals (such as PFOA and PFOS), and insufficient information to properly assess human health risk across the entire structural class. According to NIH s Substances of Concern Database (as of April 2018), shorter chain PFCs (those with four to six carbons) are considered to be less toxic than longer chain PFCs, however, there is limited toxicological data on shorter chain PFCs and, since they are similarly structured and could therefore have similar properties, using these as alternatives to their longer chain counterparts could result in a regrettable substitution. The NIH s recommended reduction strategies include selecting products and materials that do not contain PFCs, for example, choosing food packaging... made without PFCs. The Washington State Departments of Ecology and Health released an Interim Action Plan for Perand Polyfluorinated Alkyl Substances in April 2018 that summarizes the latest science concerning the safety of this major class of PFCs: Some short-chain PFAS appear to be less bioaccumulative in people than long-chain compounds, but publicly available data on their hazards is limited to a few compounds. Like long-chain PFAS, many of the short-chain substances are extremely persistent or degrade into extremely persistent forms. Short-chain PFAS also tend to be more water soluble and more mobile than the long-chain substances. This means they can move more easily through soil to contaminate groundwater or surface water, and are harder to filter out of drinking water. The short-chain replacements may be regrettable substitutes for PFOA and PFOS. If environmental exposures to short-chain PFAS are found to pose health risks to people or the environment, mitigation will be difficult and expensive. 2

3 It is precisely in these areas of emerging concern, where red flags have been raised but science has not yet been able to provide a definitive answer about safety, where green procurement is appropriate and can be most effective at moving the market toward safer alternatives. Like the EPA s PFOA Stewardship Program, which pre-dated the final FDA ban on long-chain PFCs by ten years, New York State s choice to limit State agency purchasing of products containing PFCs can help drive the development and availability of safer alternatives, while facilitating an orderly and less disruptive transition. Recommendation: Retain the precautionary requirement to avoid the purchase of products containing PFCs, in order to reduce human exposure and prevent additional sources of PFCs from entering the environment. 3. Alternatives to Short-Chain Perfluorinated Chemicals Comments: Industry states that food containers containing short-chain PFCs prevent grease from soaking through and prevent burns in products like popcorn bags. In addition, they state that current alternatives available on the market, such as paper coated with wax, do not provide this level of performance; and that the use of these alternatives would increase the volume and weight of packaging required per food unit, as well increase the probability of leakage and the staining of clothes and furniture, thus increasing waste. Advocates state that Clean Production Action has published a listing a wide variety of compostable food service ware products that are free of PFCs, including clay-coated products that prevent grease and other liquids from soaking through. They also state that the specification should reference the Center for Environmental Health s (CEH) report, Avoiding Hidden Hazards: A Purchaser Guide to Safer Foodware (CEH Report), which contains additional information about reusable, compostable and recyclable food service containers and wrappers that are PFC-free. Response: The CEH Report recommends the purchase of reusable food service ware products whenever possible. Such products, commonly made of glass, ceramic, porcelain, or metal do not require the addition of PFCs to resist grease or prevent leaking. CEH s website, provides a PDF of the report and an Excel spreadsheet of fluorine-free alternatives, including brands, products, and current pricing. Compostable alternatives that consistently tested as fluorine-free include: 100% polylactic acid (PLA), paper lined with PLA, paper coated with clay or wax, and uncoated paper or paper board (non-molded). Recyclable alternatives that consistently tested as fluorine-free include: polypropylene (PP) and polyethylene terephthalate (PET). Some of these alternatives are competitively priced with containers made of molded fiber, and some are suitable for hot food (e.g. expanded PLA and polypropylene). There are also PFC-free paper wrappers available, including some with grease resistance. Recommendation: Retain the requirement to avoid the purchase of products containing PFCs, where alternative products are cost competitive and meet form, function and utility requirements. Work with vendors to source and offer PFC-free alternatives at competitive prices. 4. Safety of Polystyrene Comments: Industry states that polystyrene, which includes styrene, is safe for use in food containers and packaging, and is approved for food contact use by the FDA. They note that styrene is also found in foods such as strawberries and cinnamon. Advocates state that the listing of styrene as a neurotoxin and reasonably anticipated human carcinogen by the National Toxicology Program (NTP) should be enough to justify its avoidance in food containers. They note that EPA has documented that 100% of the U.S. population has styrene in their bodies. 3

4 Response: The National Toxicology Program concluded in 2011 that styrene is reasonably anticipated to be a human carcinogen (Report on Carcinogens, Twelfth Edition). A primary use of styrene is in the manufacture of polystyrene, which is extensively used, in both rigid and foam forms, to make disposable food containers. The National Academy of Sciences states that: [s]ources of environmental exposure includ[e] food (from migration of styrene from polymer packaging materials) (Review of the Styrene Assessment in the National Toxicology Program 12th Report on Carcinogens, 2014). The Plastics Scorecard, developed by Clean Production Action, is a method for evaluating the chemical footprint of plastics and a guide for selecting safer alternatives. It assesses plastics based on their use of chemicals of concern during the manufacturing process and in the final product. According to the Scorecard, polystyrene has a high environmental footprint compared to a number of other plastics, including polyethylene, polypropylene, and polylactic acid (PLA). Recommendation: Retain the requirement to avoid polystyrene, where alternative products are cost competitive and meet form, function and utility requirements. Work with vendors to source and offer less toxic alternatives at competitive prices. 5. Recyclability and Desirability of Polystyrene Comments: Industry states that expanded polystyrene foam, sometimes referred to as Styrofoam, can be recycled and that New York State does have facilities that recycle it. Industry states that litter from expanded polystyrene foam cannot be increasing because there has been no increase in the use of expanded polystyrene foam materials. Avoiding expanded polystyrene foam would not reduce litter, because litter is caused by faulty human behavior, not a material. Avoiding expanded polystyrene foam would only change the type of litter, not reduce it. Advocates state that polystyrene takes a long time to degrade and, like other plastics, breaks down into smaller pieces and accumulates in the ocean where it is ingested by aquatic organisms. Response: Expanded polystyrene foam is not easy to recycle. Thirty years after the passage of New York s Solid Waste Management Act in 1988, expanded polystyrene foam is recycled by only two jurisdictions in the State, Madison County and Yonkers. The New York City Department of Sanitation issued a report in 2017, Determination on the Recyclability of Food-Service Foam. It found that food-service foam or post-consumer food-service foam cannot be recycled in a manner that is economically feasible or environmentally effective for New York City. The report explains that much of the polystyrene foam picked up to be recycled ends up being crushed into little bits and covered in food waste, making it worthless when it arrives at the material recovery facility. These broken bits also get past the manual sorters that separate out the different types of recyclables, meaning the polystyrene contaminates other recycling processes, including paper. The small amount of foam that is sorted properly is often stockpiled awaiting non-existent buyers and ultimately sent to a landfill. The City relied on this report to reinstitute a ban on the use of polystyrene foam in November Polystyrene is highly persistent in the environment and foam, in particular, is common in litter. Even if reducing polystyrene use would not reduce the amount of litter, but simply replace it with a different type of material, a more biodegradable alternative would have a less adverse impact than polystyrene. Recommendation: Retain the requirement to avoid polystyrene, where alternative products are cost competitive and meet form, function and utility requirements. Work with vendors to source and offer more environmentally desirable alternatives to polystyrene at competitive prices. Modify the language of the specification to state that expanded polystyrene foam waste is abundant in litter, not increasingly abundant. 4

5 6. Alternatives to Polystyrene Comments: Industry states that expanded polystyrene foam is a good insulator and prevents burns to consumers from hot liquids. They recommend that an in-depth analysis be made of alternatives to polystyrene. They cite a life-cycle study which concluded that a plastic-coated cardboard cup uses more energy, produces more waste by weight and volume, and generates more greenhouse gases than a expanded polystyrene foam cup. Response: As discussed above, compostable alternatives to polystyrene that also consistently test as fluorine-free include: 100% polylactic acid (PLA), paper lined with PLA, paper coated with clay or wax, and uncoated paper or paper board (non-molded). These alternatives, if recycled in a commercial composting facility, should produce significantly less waste than polystyrene. They will also biodegrade more readily if they wind up as litter. Recyclable alternatives that consistently tested as fluorine-free include: polypropylene (PP) and polyethylene terephthalate (PET). Although PET has a higher chemical footprint than PP, according to The Plastics Scorecard, it is still better than polystyrene. Some of these alternatives are competitively priced with containers made of polystyrene, and some are suitable for hot food (e.g. expanded PLA and PP). Recommendation: Retain the requirement to avoid polystyrene, where alternative products are cost competitive and meet form, function and utility requirements. Work with vendors to source and offer more environmentally desirable alternatives to polystyrene at competitive prices. 7. Other Chemicals of Concern Comments: Advocates state that the specification should recommend the avoidance of additional chemicals of concern found in food containers and wrappers, such as phthalates, bisphenols, polyvinyl chloride and vinylidene chloride. They state that researchers have linked phthalates to birth defects, cancer, asthma and other disorders at high exposure levels. They state that bisphenols are known endocrine disruptors, and Bisphenol A and S have been linked to infertility and cancer. They state that PVC is a known carcinogen according to the International Agency for Research on Cancer (IARC). Response: The Plastics Scorecard, lists phthalates and bisphenol A as common chemicals of concern found in plastics. PVC is widely used in food packaging. The EPA also lists vinylidene chloride as a common chemical used in the production of polyvinylidene chloride copolymers, whose major application is the production of flexible films for food packaging. According to the EPA, the primary short-term effects of vinylidene chloride are on the central nervous system (CNS), while chronic exposure may affect the liver, kidneys, central nervous system and lungs. All four types of chemicals are listed as chemicals known to the State of California to cause cancer or reproductive toxicity pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 (CA Proposition 65). Other chemicals of concern that might be found in both reusable and single-use food containers, such as the heavy metal lead, are also listed under Proposition 65. Recommendation: Add an encouragement for affected entities to avoid the purchase of food containers and wrappers containing intentionally added chemicals known to the State of California to cause cancer or reproductive toxicity pursuant to Proposition 65. 5

6 8. Desirability of Reusable Food Containers Comments: Industry states that reusable food containers may not always have less environmental impacts than single-use containers, and that facilities without dishwashers will not be able to use them. Advocates state that reusable service ware is the most sustainable option and the best way to avoid perfluorinated chemicals. They recommend that the Reusable Food Serviceware Guide produced by the Clean Water Fund and the ReThink Disposable initiative by Clean Water Action be referenced to demonstrate the cost savings of switching to reusable products. Response: Reusable food service containers such as ceramic plates, mugs and bowls, are almost always more environmentally desirable than single-use containers. Reuse maintains the integrity of the original product, and therefore retains the embedded energy and value of the materials used, resulting in less waste and energy use. Life cycle analyses reveal that when materials extraction, fabrication, transport, distribution and disposal are all considered, reusable food service containers have significantly less environmental impacts than single-use food service ware, including energy use and pollution. New York State s Solid Waste Management Act, enacted in 1988, established a waste management hierarchy with reuse as the most desirable action. Recommendation: Retain the requirement for affected entities to purchase and use reusable food service containers to the maximum extent practicable. 9. Desirability of Compostable Food Containers Comments: Industry states that compostable food containers would not reduce food waste compared to recyclable containers, since recyclable containers are rinsed off before being recycled. A number of commenters stated that the use of compostable containers should be limited to facilities able to send their waste to a commercial composting facility, and that a statement be included in the specification that facilities check to ensure that commercial composting is available before purchasing compostable ware. Advocates state that a reference to the NYS Pollution Prevention Institute s Organic Resource Locator should be added to the specifications to encourage facilities to choose composting and the use of compostable service ware products. Response: Compostable materials are the best choice for single-use food service products because composting is the easiest way for food service operators to divert left over food away from landfills. Users do not need to sort compostable food containers into a different bin apart from food, and food left on containers or wrappers does not present a contamination problem, as it does for recycling. For this reason, the use of compostable food service ware can lead to greater food waste diversion than recyclable ware. According to the U.S. Environmental Protection agency, food waste is the largest category of municipal waste sent to landfills in the U.S., comprising approximately 22% of the waste stream. That said, it is important for affected entities to check to make sure that systems for diverting waste to composting (or a comparable alternative treatment technology such as anaerobic digestion) are in place before purchasing compostable food service ware. Recommendation: Strengthen the language encouraging affected entities to ensure that a system for composting in place before purchasing compostable ware. Add a reference to the Organic Resource Locator. 10. Desirability of Recyclable Food Containers Comments: Advocates support the use recyclable containers when a non-reusable or noncompostable product is not feasible or available. Recycling saves natural resources and energy. A number of comments recommended that a statement be included in the specification encouraging 6

7 facilities to check with their local recycling authority to ensure that the containers they use can be recycled. Response: Recycling diverts material from landfills and incinerators and makes it available for conversion to other products. Manufacturing products from recycled materials often uses less energy and water than making them from virgin (i.e. unrecycled) materials. Recommendation: Strengthen the language encouraging affected entities to ensure that a system for recycling is in place before purchasing recyclable containers, in order to ensure that the material purchased can be recycled. 7

NTT Guidelines for Green Procurement

NTT Guidelines for Green Procurement Revised December 2013 Document Revision Chronology Date/year December 2013 Revision specifics Integrated NTT Group Guidelines for Green Procurement and Guidelines for