December 2020 Regulatory Update

The new law amends the Environmental Conservation Law section 37. The changes are summarized below:

1. Amending section 37-0203 – two new subdivisions (5 and 6) were added.
1. Subdivision 5 – “food packaging” means a package or packaging component that is intended for direct food contact and is comprised, in substantial part, of paper, paper board, or other materials originally derived from plant fibers
2. Subdivision 6 - “Perfluoroalkyl and Polyfluoroalkyl substances” or “PFAS substances” shall mean, for the purpose of food packaging, a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom
2. New section 37-0209 was added to prohibit PFAS substances in food packaging.
1. Section 37-0209 – Prohibition on the use of perfluoroalkyl and polyfluoroalkyl substances in food packaging
1. No person shall distribute, sell or offer for sale in this state food packaging containing perfluoroalkyl and polyfluoroalkyl (PFAS) substances as intentionally added chemicals
2. “Intentionally added chemical” means a chemical in a product that serves an intended function in the product component

PFAS substances, including perfluorooctanoic acid (PFOA) and perflourooctane sulfonic acid (PFOS), are a group of chemicals for making fluoropolymer coatings and products that resist heat, oil, stains, grease, and water.

Bill S8817 signed on December 2, 2020, will prohibit the use of PFAS substances in food packaging in New York State, and be effective as of December 31, 2022.

In the guidance, the mandatory requirements and the jurisdiction for those product categories are highlighted. For example,

• Face Coverings
• Consumer face coverings shall be subject to flammability requirements regulated by the CPSC,
• Medical use face masks such as surgical masks are under the jurisdiction of the Food and Drug Administration (FDA);
• Respirators such as N95 are considered to be personal protective equipment and are regulated by the National Institute for Occupational Safety and Health (NIOSH), under the Centers for Disease Control (CDC);
• Face shields intended for use in the diagnosis of disease are considered to be medical devices and are under the jurisdiction of the FDA while face shields for non-medical use (e.g. sun-protection) are required to comply with the CPSC requirements
• Gowns and Gloves
• Gowns and gloves for non-medical use are considered to be wearing apparel, under the jurisdiction of the CPSC, and shall be subject to the flammability requirements;
• Gowns and gloves for medical use (intended for use in health care settings) are under the jurisdiction of the FDA.
• Disinfectant and Cleaning Products
• These products are regulated by different federal agencies including the CPSC, FDA, Environmental Protection Agency (EPA), and the Occupational Health and Safety Administration (OSHA), depending on the product’s ingredients and intended use;
• Some products might need to meet registration requirements and may need child resistant packaging

If the product is intended to be used by children ages 12 and under, compliance with the labelling, testing, and certification requirements of the Consumer Product Safety Act (CPSA) shall also be required (e.g., tracking labels, total lead, Children’s Product Certificate, etc.).

An implementing Decision is a legally binding act of the EC which is directly applicable to all member states of the EU.

Implementing decisions do not need to be transposed into national legislation. This ensures implementation is consistent in each individual member state.

Implementing decisions take precedent over national legislation in case there is any conflict between the two directives.

Changes in the new Implementing Decision are summarized below:

*Other Hazards include Cut Hazard, Damage to Eyesight Hazard, Damage to Hearing Hazard, Microbial Hazard, Strangulation Hazard and Suffocation Hazard with a frequency of less than 38.

^Other Categories include Cosmetics, Computer / Audio / Video / Other Electronics & Accessories , Decorative Articles, Eyewear, Food Contact Material, Footwear, Furniture, Gadgets, Jewelry, Watch or other Fashion Accessories, Pet Equipment, Lighting Equipment Sporting Goods/ Equipment, with a frequency of less than 19.

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The Toys and Children’s Products Safety Ordinance stipulates that a person must not manufacture, import or supply a toy or a Schedule 2 product unless it complies with all the applicable requirements contained in any one of the safety standards respectively specified in Schedules 1 and 2 to the Ordinance. The standards specified are international standards or standards adopted by major economies.

Proposed updates to Standards Specified for Toys and Schedule 2 Products 2021 are summarized below:

GB/T 4146.1 lists out names of the various chemical fibers based on the main polymers for industrial production, textile and other uses, and gives their main characteristics. The new version includes many updates to the old version, with the key technical differences as follows:

1. Added terms and definitions of “man-made fiber/ chemical fiber”. Man-made fiber/ chemical fiber: Fibers which are made by man, except natural fibers.
2. Added generic name, symbol, main characteristic and chemical formula to 12 kinds of chemical fibres, including:
   Modacrylic, chitosan, melamine, protein, trivinyl, polybenzimidazol, elastomultiester, polyamidoester, silicon carbide, polyhydroxy, polycarbamide and polyarylate.
3. Divided Polyvinyl alcohol fibres into acetal and non-acetal types, specified vinylon is short for polyvinyl alcohol fibre.
4. Added the name of bicomponent composite fibre, such as:
   Polyester/polyester bicomponent
   Polyethylene/polypropylene bicomponent
   Polypropylene/polyamide bicomponent
   Polyester/polyamide bicomponent
   Polyethylene/polyester bicomponent
5. Added 4 informative annexes, including:
• Annex A: Suggested rules for establishing generic names
• Annex B: Composite fibre
• Annex C: Modified fibre
• Annex F: Requirements for generic names in related region and state