Federal and state agencies are considering restrictions or bans of individual ‘forever chemicals’ PFAS (Perfluoroalkyl and polyfluoroalkyl compounds) or PFAS as a class, while at least 24 putative class actions targeting packaged goods purportedly containing PFAS were filed from January 1 to August 1, 2022 alone. So how widely used are PFAS in the food industry, and how can firms protect themselves from litigation?
Perfluoroalkyl and polyfluoroalkyl substances (PFAS) are a large class of diverse chemicals: more than 12,000 have been identified.* PFAS substances contain at least one fully-fluorinated carbon atom, which makes them persistent in the environment. PFAS are used to make products resistant to heat, oil, stains, grease, and water. Until recently, they have been viewed as a useful component of food packaging materials.
However, there is growing concern that PFAS will detrimentally impact human health by either migrating from packaging into food items and be ingested by consumers or ending up in landfills and migrating to soil and water. As a result, federal and state agencies are considering restrictions or bans of either individual PFAS compounds or PFAS as a class.
FDA actions
From the 1960s through the 2000s, the US Food and Drug Administration (FDA) authorized specific PFAS for use in food-contact applications. These applications were primarily used as oil and grease resistant coatings for food packaging materials. Under the food contact notification (FCN) program, FDA conducted scientific reviews of the substances to ensure their safety for food-contact uses.
In 2012 and again in 2020, FDA requested that some manufacturers voluntarily withdraw their PFAS products from use in food-contact applications. These withdrawals drew attention to FDA’s process for reviewing food-contact substances, and consumer groups now contend that the process is incomplete or inadequate. In January 2022, FDA issued a proposed rule seeking the authority to restrict uses of food-contact substances for non-safety-related reasons.
State actions
Nine states have enacted regulations to ban PFAS as a class in food packaging with at least 10 more proposing to do so. Most of these regulations focus on intentionally added PFAS, and some go into effect within months (New York on December 31, 2022 and California on January 1, 2023). State actions create a patchwork of regulations that companies will need to become familiar with to ensure compliance.
Testing for PFAS
To comply with the developing regulations, food packaging may need to be tested for PFAS.
Packaging can be analyzed for total organic fluorine (a surrogate measure for PFAS) or for individual PFAS compounds. Existing analytical techniques can detect minute amounts of PFAS present in packaging materials. Challenges to conducting PFAS analyses include the limited number of individual PFAS compounds that can be analyzed, a lack of qualified/accredited laboratories, high analytical costs, and long turnaround times.
These issues may be exacerbated by the increase in demand for PFAS analyses due to expanding regulations and increased enforcement actions and litigation.
While regulatory scrutiny of PFAS is recent, litigation involving PFAS is not. Over the past decade, hundreds of lawsuits have been filed involving allegations that exposure to these substances has caused physical harm to individuals or environmental contamination.
The lawsuit involving DuPont is a notable example: The case included allegations that chemical run-off from a PFAS substance contaminated groundwater which harmed the individuals who ingested that water, resulting in billions of dollars in settlement payments – and the feature film Dark Waters (2019).
The recent and upcoming regulatory changes have spawned a new form of PFAS-related litigation targeting food products, their packaging, and similar consumer goods. These lawsuits assert that plaintiffs have experienced economic harm on the theory that products containing PFAS compounds render “healthy,” “eco-friendly,” or “sustainable” products mislabeled, and accordingly, the products are worth less than what consumers paid for them.
These economic loss cases closely parallel a similar increase in media attention on the topic. In March 2022, Consumer Reports published an article entitled “Dangerous PFAS Chemicals Are in Your Food Packaging.”
Within two months of the publication, five class action lawsuits were filed against Burger King and McDonald’s (whose food packaging was identified as containing PFAS in the report). All of these cases involve purely economic loss claims.
The trend toward ‘economic loss’ consumer class actions is significant. A survey conducted by Sheppard Mullin revealed that between January 1, 2022 and August 1, 2022 alone, at least 24 putative class actions targeting packaged goods purportedly containing PFAS were filed. All seek only economic damages and none assert personal injury from exposure to PFAS.
As economic loss cases proliferate, it is prudent that companies consider the risks of litigation associated with their products and advertising, and, come to an understanding of whether their products comply with the developing patchwork of federal and state laws governing these compounds.