The federal government and several states are in the process of regulating PFAS chemicals in food packaging, and there is consumer litigation as well, write Bryan Cave partner Thomas Lee, associate Elyse Voyen, and attorney John Kindschuh. They discuss the issue and how businesses should prepare.
Have you ever wondered why your French fry box doesn’t disintegrate, or your burger wrapper doesn’t turn into a soggy mess?
The answer is a family of several thousand chemicals called per- and polyfluoroalkyl substances (PFAS). Certain PFAS compounds are incredibly effective at repelling water and oils (think fat and grease) and have been used in a wide range of consumer products including food packaging.
However, based on concerns about the impacts that certain PFAS compounds can have on human health and the environment, both the federal government and states have begun regulating the presence of these compounds in food packaging. For businesses that manufacture or use food packaging, it is important to understand the current regulatory environment.
Proposed Federal and State Legislation
The bi-partisan Keep Food Containers Safe from PFAS Act of 2021 was introduced in both the House and Senate in November 2021, and has been referred to committees in both chambers.
The relatively short bill would amend Section 301 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 331) to prohibit the “introduction or delivery for introduction into interstate commerce of food packaging containing intentionally added PFAS.”
In the bill, PFAS is broadly defined to include all PFAS compounds with a fully fluorinated carbon atom, and not just the PFAS compounds that have been associated with human health effects and environmental effects. If enacted, this bill would essentially prohibit the use of PFAS in any new food packaging. The bill has not made it out of committee in either house, so it is unclear when, if at all, it will become law.
Additionally, the Food and Drug Administration issued a letter on Aug. 5, 2021,
to manufacturers and distributors of fluorinated polyethylene food contact articles “as a reminder that only certain fluorinated polyethylene containers are authorized for food contact use.” These containers—also referred to as high-density polyethylene (HDPE) containers—have been identified by the Environmental Protection Agency as a source of PFAS contamination in certain pesticides and are reportedly used during food product manufacturing.
As a result, there may be increased federal regulation of the packaging and containers used during food manufacturing, as well as consumer food packaging.
Bloomberg Law, 29-04-22