A Beginners Guide to FDA

Legislation of Food Contact

Materials
Dr Alistair Irvine, Smithers Pira
23 March 2017

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Introducing Dr Alistair Irvine

Alistair manages the Food Packaging Safety

Section within Smithers Pira. This involves
advising clients on the safety legislation which
applies to food packaging in a wide range of
different countries throughout the world and
coordinating work programmes to ensure that
clients' products meet these requirements.

His expertise spans all the EU countries, USA,

Japan, Australia, New Zealand, Canada,
Israel, Russia and all the South American
countries.
 Introduction

Today’s Webinar will focus on:

 How the FDA regulates Food Contact Materials.
 The Code of Federal Regulations or the FDA
Regulations (CFR21 parts 170-199).
 The role of Food Contact Notifications.
 Exemptions from FDA Regulation.
 Q&A
 Disclaimer

• If you have come to this session looking for a deep dive

into the approval processes for food contact materials in
the USA, this may not be the presentation for you. We
will present on that subject in a future webinar though.
• This webinar will offer a general overview of how food
contact materials are regulated in the USA.
• Please bear in mind that the guidance in this talk does
not represent legal advice.
• Also, bear in mind that the FDA regulations are quite
complex and can take very careful reading.
 A Short History of US Food Law

• 1906 Food And Drug Act (No requirements on food

contact materials)
• 1938 The Federal Food, Drug, and Cosmetic Act (Still no
requirement relating to food contact materials, but a lot
of the mechanisms which support the legislation were
set up).
• 1957 Amendment to the FFDCA brought food contact
materials under the scope of the regulation. This came
into effect in 1958.
 How does the FDA regulate FCMs?

• Section 201(s) of the act, a food additive is defined as

“any substance the intended use of which results in or
may reasonably be expected to result ….in its becoming
a component of food”
• Substances passing into food from packaging are
therefore regarded as ‘indirect food additives’
 Routes to compliance with FDA Rules

• There are essentially 3 routes to FDA

compliance;
– For many established food contact materials, there
will be an existing specific FDA regulation dealing
with that material. 21CFR Parts 170-199.
– For new food contact substances, you will probably
need to seek authorisation from FDA. FCNs and
Threshold of Regulation.
– If you can argue that the substance is not covered by
the scope of FFDCA, FDA approval is not required.
 Route 1: 21CFR Parts 170-199

• These are mostly what people refer to as the ‘FDA

Regulations’.
• Cover almost all classes of food packaging
– Plastics; polyolefins, polyesters, polystyrene, polyamides and
many many more
– Paper and cardboard
– Polymeric coatings
– Additives
– Adhesives
• The majority of everyday food contact materials can usually be
made with Food Contact Substances which are covered by one of
these regulations.
• They are therefore a primary source of information when considering
whether a food contact material can be placed on the US market.
 Code of Federal Regulations CFR21

• Relevant Sections can be found in 21 CFR Parts 170 to 199.

• Available as hard copy, but [almost] no-one bothers because….
• Also available for free at web site;
• https://www.gpo.gov/fdsys/pkg/CFR-2016-title21-vol3/pdf/CFR-
2016-title21-vol3-chapI-subchapB.pdf
• Regulations updated usually on April 1, so please be careful with
link (which links through to the 2016 regulations - still current at time
of writing though).
 When do you use 21CFR 170-199?

• Whenever you are working with long established

materials?
– In the case of polymer producers, this will be when you are
placing conventional packaging polymers (or papers, additives,
coating etc.) on the market.
– In the case of packaging manufacturers, where all of your raw
materials are certified against existing FDA regulations.
 Where did the regulations come from?

• FDA over a long period of time invited producers of food contact

materials to register the materials under a Food Additive Petition
(FAP).
• Applicants submitted dossiers based on FDA guidance at the time.
This would involve a measurement of migration, and calculation of
dietary exposure which FDA would then compare with toxicological
information to reach a determination of safety.
• Successful applications became transferred into a regulation.
• The FDA guidance changes periodically and leaves some room for
differing approaches.
• As a result, the regulations that come out of this process vary greatly
in form.
• The process is still open, but is not used so much now that the Food
Contact Notification System is open.
 How is 21CFR laid out?

Part
170-173 Mostly concerned with Direct Food Additives
174 Indirect food additives: General
175 Indirect food additives: Adhesives and components of coatings
176 Indirect food additives: Paper and paperboard components
177 Indirect food additives: Polymers
178 Indirect food additives: Adjuvants, production aids, and sanitizers
181 Prior-sanctioned food ingredients
182-186 Substances generally recognized as safe
189 Substances prohibited from use in human food
190 Dietary supplements
 Individual Regulations

Section
177.1500 Nylon resins.
177.1520 Olefin polymers.
177.1550 Perfluorocarbon resins.
177.1555 Polyarylate resins.
177.1556 Polyaryletherketone resins.
177.1560 Polyarylsulfone resins.
177.1570 Poly-1-butene resins and butene/ethylene copolymers.
177.1580 Polycarbonate resins.
177.1585 Polyestercarbonate resins.
177.1590 Polyester elastomers.
177.1595 Polyetherimide resin.
177.1600 Polyethylene resins, carboxyl modified.
177.1610 Polyethylene, chlorinated.
177.1615 Polyethylene, fluorinated.
177.1620 Polyethylene, oxidized.
177.1630 Polyethylene phthalate polymers.
 §177.1520 (Polyolefins)

• Contains definitions of individual types of polyolefins – if your

polymer doesn’t meet any of these definitions, it isn’t covered by this
regulation.
• Lists permitted additives, where these are not covered by general
lists
• Contains specifications for polymers subdivided by polymer type
and application. Specifications include density, melting point and
hexane and xylene extractable material as a percentage.
• Test methods also specified.
• End use restrictions on applications in which resins used (i.e.
restrictions on food types and temperatures).
• As long as the resin complies, there is no need for finished article to
be tested.
 What isn’t in the Regulations?

• Anything which is listed generally (elsewhere in the

regulations) as a Direct or Indirect Food Additive.
• Anything considered as exempt from regulation.
• FDA regulations generally (but not exclusively) tend to
focus on the final chemical composition and not the
monomers.
 Use of Cross Referencing

• A Grade of HDPE contains 500 ppm of Octadecyl-3,5-di-

tert-butyl-4-hydroxyhydrocinnamate (Irganox 1076).
• This is not listed in the short list of approved substances
specifically mentioned under 21CFR §177.1520.
• It is listed in Regulation §178.2010 (antioxidants)
• In this regulation, it is specifically approved for use ‘At
levels not exceeding 0.25 wt% of olefin polymers
complying with § 177.1520(c) of this chapter, item 1.1,
1.2, 1.3, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, or 4.’
• It is therefore approved for use in HDPE by cross
referencing.
 Tips for Working with 21CFR Parts 170-199

• Read the regulations you are working with very very carefully.
• Take particular care when you are trying to support the use of
a substance in a plastic (or any other application) based on a
listing in a separate regulation. Make sure the approval for
the substance will cover what you want to do with it.
• Watch out for end use restrictions. Not all materials are
suitable for use with all types of food under all temperatures.
• If you are going to work with the FDA regulations a lot, try to
get to grips with Tables 1 and 2 of Regulation 176.170 on
paper.
 §176.170 Table 1 -Types of Raw and Processed Foods

I. Nonacid, aqueous products; may contain salt or sugar or

both (pH above 5.0).
II. Acid, aqueous products; may contain salt or sugar or
both, and including oil-in-water emulsions of low- or high-fat
content.
III. Aqueous, acid or nonacid products containing free oil or
fat; may contain salt, and including water-in-oil emulsions
of low- or high-fat content.
IV. Dairy products and modifications:
A. Water-in-oil emulsions, high- or low-fat.
B. Oil-in-water emulsions, high- or low-fat.
V. Low-moisture fats and oil.
 §176.170 Table 1 -Types of Raw and Processed Foods

VI. Beverages:
A. Containing up to 8 percent of alcohol.
B. Nonalcoholic.
C. Containing more than 8 percent alcohol.
VII. Bakery products other than those included under Types
VIII or IX of this table:
A. Moist bakery products with surface containing free fat
or oil.
B. Moist bakery products with surface containing no free
fat or oil.
VIII. Dry solids with the surface containing no free fat or oil
(no end test required).
IX. Dry solids with the surface containing free fat or oil.
§176.170 Table 2
 Things to watch out for in 21CFR 170-199

• Very often approvals have restrictions placed upon them.

• For example, you could find something the following
wording on a food contact statement for an FDA
compliant material.
– Reynholm Industries Polymer X may be used as a barrier layer
in multilayered plastics films and can be used to package all
types of foods under Conditions B through H of 21CFR 176.170
(c) Table 2.
• Where restrictions like this are present in a regulation
they need to be respected.
• It creates a need for information transfer from the raw
material supplier to the user.
Why did the FAP System fall out of favour?

• Where a food contact material is cleared under the Food

Additive Petition System, the resulting Regulation in 21CFR is
Generic, which means that any producer of similar materials
can use that regulation to show safety for their products.
• This is obviously good for end users, but if you have spent a
lot of money to register a new polymer, you would probably
prefer a proprietary approval.
• The FDA were always understaffed in the section which
evaluates FAPs, so they took a long time to review dossiers.
• A quicker and proprietary system was therefore devised by
FDA.
 Route 2: Food Contact Notification Program

• Introduced in January 2000 as part of the FDA

Modernization Act of 1997.
 Formal Process and Clearly defined package of information
required.
 120 day clock for FDA to raise objections.
 If they do not, the packaging material is automatically legal.
 Program periodically comes under budgetary review.
 Information Required by FDA to support an FCN

• Migration Study
– A measure of how much of the substance migrates into foods
using the FDA’s standard protocols.
• Estimate of Dietary Exposure
– Using the FDA’s standard dietary exposure model to estimate
amount of the substance in the daily diet. The same model that
is used for an FAP.
• Toxicological Review
– Depending on the level of dietary exposure, the FDA will ask for
differing levels of toxicological information.
– For the highest levels of exposure, they will still ask for an FAP.
• Environmental Impact Assessment
 FDA Process for FCNs

• FDA offer a Pre-Notification Consultation meeting (either

by phone or in person) to help work with you to iron out
any minor blemishes before the dossier is submitted.
• FDA have a rapid (< 120 day) turnaround on the review
process. They are able to do this because much of the
burden or assessment has been passed back to the
petitioner.
• Assuming the FCN is granted, it will be published in the
FDA’s inventory
– www.fda.gov/Food/IngredientsPackagingLabeling/PackagingFC
S/Notifications/default.htm
 Who would apply for an FCN?

• Typically, the producer of the food contact substance would

apply for it to be registered.
• What would trigger this would be;
– When they wish to place a new food contact substance on the market or
– When they wish to use a substance which is already approved under an
FCN under new conditions which go beyond the scope of its existing
approval (e.g. using an existing antioxidant in a different plastic or at
higher levels than previously approved).
• Users of food contact substances (i.e. packaging
manufacturers) would not normally apply for FCNs as it would
be unlikely they could ever be in a position to recoup the
costs.
• Users would therefore mostly rely on preapproved
substances.
 What does this mean for packaging manufacturers?

• Clearly the first task is to gather food contact statements for

FCN substances.
• These might also contain restrictions;
– Reynholm Industries Product Y will comply with USA FDA regulations
under FCN 1999. This notification allows for use of this product in
contact with all types of food Under Conditions of use C-H as described
in Table 2 of 21CFR Section 176.170.
• Where a substance like this is used, these restrictions would
need to be respected and communicated downstream to
users.
• Also, because an FCN approval is proprietary, to rely on this
FCN, you would need to ensure that the material is produced
by Reynholm Industries.
 Other routes for formal FDA Review

• Threshold of Regulation Mechanism for very low

exposure substances (<0.5 ppb in the diet).
• Approval of plastics recycling processes.
• Formal review of Generally Recognised as Safe status.
 Route 3: Exemptions from FDA regulation

• There are a number of widely used packaging materials

which are exempt from the FDA regulations.
• Just because your substance isn’t listed, it doesn’t mean
it can not be used, but there are limits!
 Exemptions

• Prior Sanction
• Substances Generally Recognised as Safe
• No Migration Exemption
• Basic Resin Doctrine
• No Migration Exemption
• Mixture Doctrine
• Functional Barriers and Threshold of Regulation
• Housewares Exemption
 Prior Sanction

• Food packaging first brought under Food and Drugs Act

in an amendment of 1958
• Before this, the FDA had previously approved many
inquiries from manufacturers regarding suitability of food
substances or packaging.
• De Facto recognition of these prior sanctions granted in
1958 and continues in force.
• Prior sanction status is merely a statement of fact
depending on the existence of an approval letter prior to
1958.
• PVC is the most notable example of a Prior Sanction
Substances Generally Recognised as Safe; GRAS

• List is given in 21 CFR Parts 182 (General Provisions),

184 (Direct Food Additives) and 186 (Indirect Food
Additives).
• Direct Food Additives covered by GRAS are also OK as
plastics additives (e.g. zinc oxide and zinc stearate).
• Options exist for self determination of GRAS status of a
substance.
 Self determination of GRAS Status

• Laid out in 21 CFR §170.30

• Requires Common Knowledge of substance throughout
scientific community.
• For substances not widely used in food before 1958,
requires same quantity and quality of information as an
FCN
• Therefore not widely used for new substances.
• Needs and expert and/or lawyer to advise on this.
• Self-GRAS is currently a contentious issue in the area of
direct food additives. No problems have been raised in
respect of packaging ingredients, but care is required.
 No Migration Exemption

• Ties back to the Food and Drugs Act

• If a substance is not reasonably expected to become a
component of food, it is not considered an additive and
therefore will not be covered by the act.
• Provides the most used route to self-determination that a
food additive is not subject to FDA review.
 The Ramsey Proposal

• Where do you stop worrying about migration?

• No migration is interpreted as less than 50 ppb, except
for high exposure applications such as milk and
Carbonated Soft Drink bottles and for biologically active
molecules where a 10 ppb limit applies.
• Must not be known to pose special toxicological
concerns (e.g. heavy metals or carcinogens), and must
not be known not to pose toxic reactions at levels of 40
ppb or lower in the diet of man or animals.
• Confirmed by a Legal Case; Monsanto vs Kennedy 1979
 How do you demonstrate “No Migration”

• Modelling or testing permitted.

• Assumptions of 100% migration calculations.
• Self determination (although you may prefer someone
with expertise and public liability insurance to carry out
the calculation).
• No need to notify FDA.
 Summary

• We’ve seen how there are three distinct routes to

demonstrate compliance for the FDA food contact
regulations;
– For many well-established food contact materials, these will be
covered by the FDA Code of Federal Regulations 21CFR 170-
199.
• When relying on these, please read them well and make sure you
understand the regulations you are using and the need for onwards
dissemination of information.
– For New food contact materials, the primary route for approval is
now the FCN system.
• Again look out for end use restrictions and remember that the FCN only
applies to the company who own the FCN.
– It is also possible to claim exemption from FDA regulation, but
you should do so only with care.
 Contact Details

Dr Alistair Irvine
[email protected]
+44 (0)1372 802176

Smithers Pira, Cleeve Road, Leatherhead,

Surrey KT22 7RU, United Kingdom

www.smitherspira.com/services/food-contact