The Use Of Recycled Plastics In Food Packaging In The United States

• Jurisdiction: United States,Federal
• Law Firm: Steptoe & Johnson
• Subject Matter: Consumer Protection, Food, Drugs, Healthcare, Life Sciences, Product Liability & Safety, Food and Drugs Law
• Author: Mr Daniel C. Rubenstein
• Published date: 03 July 2023

The purpose of this article is to provide companies with a brief overview of the Food and Drug Administration's (FDA) recommendations regarding the use of recycled plastics in food packaging applications in the US. We hope that you will find this background helpful, and we welcome the opportunity to assist you with any specific questions regarding the use of recycled materials here or around the globe, moving forward.

I. Background

The US Food and Drug Administration (FDA) has not yet promulgated any specific regulatory requirements pertaining to the use of recycled plastics in food packaging materials and articles. Instead, and consistent with FDA's Good Manufacturing Practice (GMP) and suitable purity requirements, it is the responsibility of the manufacturer, re-processor or converter to ensure that a finished food-contact material or article containing recycled material is suitable for use in food-contact applications.¹That is, when used as intended, the finished food-contact material or article containing recycled material should not adversely impact the health or safety of food, nor should it impart any organoleptic qualities that would render the food unfit for consumption (i.e., by creating an off-taste or odor). For certain recycled materials, the recycler or user of recycled materials should also consider, evaluate, and reduce, where necessary, the presence of heavy metals that may be present in the source material and available to migrate at low levels to food.

FDA recognizes that a variety of materials can be recycled based on existing technologies, but that the specific chemistry and safety considerations for each type of material necessarily depend on the composition and regulatory status of the recycled material input, the composition of the blended virgin material (if applicable), and the end-use of the finished resin. Polyethylene terephthalate (PET) is a widely-recognized input for recycled plastics, but as recycling technologies continue to advance, new and innovative processes have allowed for the increased recycling rate of polyolefins (such as high-density polyethylene (HDPE), low-density polyethylene (LDPE) and polypropylene (PP), polystyrene, polycarbonate, and other novel materials.

As discussed more fully below, and in addition to traditional recycling technologies that have been in place for decades, the use of specific recycling methodologies - including strict limitations on source control and sorting measures - have given rise to additional opportunities to use recycled materials in food-contact applications.

II. Definition of Recycling Processes

There are currently three broadly recognized types of recycling processes, as originally defined by the US Environmental Protection Agency (EPA) in 1991:

• Primary Recycling - The use of pre-consumer scrap and regrind that is re-processed into a new material or article. Typically, this scrap and regrind never leaves the production plant before it is recycled, and therefore the material is never exposed to use conditions that could adversely impact the suitability of the material (i.e., it is never placed in contact with food, nor is it used under elevated temperature conditions). Provided that the pre-consumer scrap and regrind otherwise complies with applicable FDA food additive regulations for the intended use, and further provided that the regrind is not otherwise contaminated in-plant, the finished material or article manufactured using...