Have you ever wondered why your french fries box doesn’t disintegrate or why 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 grease 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 may have on human health and the environment, the federal and state governments have begun to regulate the presence of these compounds in food packaging. For companies that manufacture or use food packaging, it is important to understand the current regulatory environment.
Proposed Federal and State Legislation
The bipartisan Keep Food Containers Safe from PFAS Act of 2021 was introduced in the House and Senate in November 2021 and has been referred to committees in both houses.
The relatively short bill would amend Section 301 of the Federal Food, Drug, and Cosmetic Act (21 USC 331) to prohibit “the introduction or delivery for entry 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, not just PFAS compounds that have been linked to human health effects and environmental effects. If passed, this bill would essentially ban the use of PFAS in any new food packaging. The bill hasn’t made it out of committee in either house, so it’s unclear when, if at all, it will become law.
Additionally, the Food and Drug Administration issued a letter on August 5, 2021,
to manufacturers and distributors of fluorinated polyethylene articles in contact with food “to remind that only certain fluorinated polyethylene containers are authorized in contact with food”. These containers, also called high-density polyethylene (HDPE) containers, have been identified by the Environmental Protection Agency as a source of PFAS contamination in certain pesticides and are believed to be used in the manufacture of food products.
As a result, there could be increased federal regulation of packaging and containers used in food manufacturing, as well as consumer food packaging.
In the absence of a general federal ban on the presence of PFAS compounds in food packaging products, seven states have so far enacted various types of bans for PFAS food packaging (Calif., Conn., Maine , Minn., NY, Vt., and Washington), and eight other states have proposed similar legislation (Colo., Hawaii, Iowa, Md., Mass., Mich., Penn., and RI).
What does this mean for businesses?
Companies that manufacture or use food packaging can expect increased regulatory scrutiny, media attention, and possible lawsuits in the coming years.
PFAS in food packaging is a hot topic for NGOs, industry groups and affected companies, and attracts media attention.
For example, on March 24, 2022, Consumer Reports released their report “Dangerous PFAS Chemicals Are in Your Food Packaging” which concluded that PFAS chemicals were present in several types of packaging they tested, including:
- french fries containers,
- cookie and burger wrappers,
- salad bowls and
- disposable paper plates.
The report identified fast food restaurants and grocery chains as one of the main sources of those affected. food packaging.
Plaintiffs’ attorneys also picked up the scent. Since March 28, 2022, plaintiffs have filed three class action lawsuits in the Northern and Southern Districts of Illinois against McDonald’s alleging that the restaurant violated its commitment to customer safety by allowing the use of PFAS in its food packaging.
Then, on April 11, 2022, multiple plaintiffs filed a class action lawsuit in the Northern District of California for false advertising and fraud against Burger King alleging the Whopper is “unfit for human consumption” due to PFAS substances in food packaging. .
Notably, in the past two weeks, Chick-fil-A and Restaurant Brands International – which owns Burger King, Tim Hortons and Popeyes – have announced that they will eliminate PFAS from food packaging over the next few years.
While the details of future state and federal regulations are still uncertain in much of the country, PFAS in food packaging will likely be banned either through direct regulation or litigation settlement within the next few years. Therefore, now is the time for affected companies to assess their interaction with this chemistry.
This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Thomas Lee is a partner in the Energy, Environment and Infrastructure Practice Group of Bryan Cave Leighton Paisner LLP, and is the firm’s PFAS Practice Leader. He is a trusted advisor to clients on a range of environmental topics and regularly works with clients in a variety of industries including property investment and development.
John Kindschuh is a member of Bryan Cave’s Energy, Environment and Infrastructure Practice Group. He focuses his practice in the area of environmental law, including regulatory compliance, emerging contaminants analysis and transactional advice.
Elysee Voyen is a member of Bryan Cave’s Energy, Environment and Infrastructure Practice Group. She handles a wide range of matters in all major areas of environmental and energy law, including litigation, regulatory matters, transactional matters, enforcement actions, brownfield redevelopment and compliance advice. She is also a member of the PFAS team.