Per- and polyfluoroalkyl substances (PFAS) refer to an expansive array of chemicals that have been used in industrial applications since the 1940s. There are thousands of different types of PFAS, estimated to include as many as 10,000 chemical compounds, which are utilized for countless applications. PFAS are oil, water, and friction resistant and can withstand significant variations in temperature. PFAS are used in textiles, paper, cookware, fire suppression foams, and packaging. They are used widely in industries such as aerospace, microchip manufacturing, automotive, construction, aviation, and food packaging, among many others.
Given their uniquely valuable properties and range of uses, PFAS were initially hailed as wonder compounds. In 1967, FDA approved the first PFAS for use in food packaging. In the decades that followed, PFAS were used in the packaging of countless thousands of products. Currently, FDA’s Inventory of Food Contact Substances Listed in 21 CFR includes more than 30 PFAS. Such a listing means the agency has deemed the PFAS safe for their intended use and allows them to be legally marketed as food contact substances.
The Problems with PFAS
Once heralded, PFAS have turned out to be decidedly more problematic than previously imagined. They are long-lasting, environmentally destructive, and potentially toxic. PFAS take an extraordinarily long time to break down. Decades of widespread use have led to dangerous environmental accumulation. These “forever chemicals” can now be reliably detected in the oceans, drinking water, soil, plants, other animals, food, and even our own blood. Numerous studies indicate a causal link between human and animal health problems and environmental exposure to PFAS.
PFAS are subject to significant backlash, and food companies may soon face a litany of risks by continuing to use PFAS in their packaging.
In recent years, there has been a significant push by consumers, scientists, environmental advocacy groups, and many companies seeking to end the use of PFAS, especially in food packaging. Numerous food companies—including household names like Chipotle, McDonald’s, Panera, Taco Bell, Whole Foods, and Wendy’s—have pledged to stop using food packaging manufactured with PFAS. Additionally, Connecticut, Maine, Minnesota, New York, Vermont, and Washington have enacted laws banning the use of PFAS in food packaging.
The federal government has also been getting in on the act. In 2016, FDA banned manufacturers from using long-chain PFAS in food packaging. These are even longer lasting than the comparable “short-chain” PFAS. However, after the discovery that at least one short-chain PFAS continued to linger in the body after consumption of a food contaminated with the compound, FDA and manufacturers partnered in announcing that they would phase out use of the compound as a food container coating.
On October 18, 2021, EPA Administrator Michael S. Regan announced a strategic roadmap aimed at significantly reducing the use of the chemicals, including a comprehensive strategy to address the problem.
According to EPA, exposure to high levels of certain PFAS has been shown to lead to adverse health outcomes; however, research is ongoing to determine how different levels of exposure to various PFAS can lead to a variety of health effects. Research is also underway to better understand the health effects associated with low levels of exposure to PFAS over long periods of time, especially in children. These are difficult questions to answer for many reasons. The sheer ubiquity of these chemicals and our continuous exposure to them makes it difficult to identify correlations. Additionally, it is exceedingly difficult to identify which problems are attributable to which of the thousands of PFAS in widespread use. Consequently, it will take time to get clear answers.
What is clear is that PFAS are subject to significant backlash, and food companies may soon face a litany of risks by continuing to use PFAS in their packaging. Among these risks are geographical sales constraints, regulatory violations, lawsuits, and product boycotts.
Sales constraints simply refer to the inability to ship products into jurisdictions that ban the use of these chemicals in packaging. These bans subject companies to potential regulatory enforcement actions, including fines and other penalties. Moreover, we predict a significant uptick in class action claims brought against companies using PFAS packaging. Already, we are seeing an increase in product boycotts against such companies. The fact that so many large companies have already disavowed the use of these products will likely serve to strengthen the argument that companies are on notice that these products pose a potential danger to consumers. Thus, we strongly recommend that companies still utilizing PFAS packaging materials consider switching to non-PFAS products.
The EPA Roadmap
The EPA’s PFAS Roadmap is a lengthy document that details the agency’s thinking, explains the need for change, and sets timelines by which EPA intends to take specific actions. In short, EPA commits to a series of new policies aimed at safeguarding public health, protecting the environment, and holding polluters accountable for violations arising from the use of PFAS.
EPA proposes a comprehensive, multi-tiered approach, shaped by the unique challenges of addressing PFAS contamination. That is, because PFAS pollution is not a legacy issue, meaning the chemicals continue to be used in U.S. commerce, EPA must focus on both cleaning up downstream PFAS pollution and preventing future PFAS pollution. In turn, the EPA approach will focus on three central directives: research, restrict, and remediate.
Research. The research directive refers to EPA making significant investments in research, development, and innovation to increase understanding of PFAS exposures and toxicities, human health and ecological effects, and effective interventions that incorporate the best available science. That is, because we are still understanding the severity and significance of the risks posed by PFAS, the agency intends to pursue a science-based approach to better understand the risks and solutions involving PFAS.
Restrict. The restrict directive refers to taking actions intended to restrict future use and pollution. Here, the agency plans to pursue a comprehensive approach to proactively prevent PFAS from entering air, land, and water at levels capable of causing an adverse impact on human health and the environment.
Remediate. The remediate directive predictably refers to the agency’s goal of cleaning up PFAS pollution. To accomplish this, the agency intends to broaden and accelerate the cleanup of PFAS contamination to protect human health and ecological systems.
EPA’s goals and timelines address a broad area of regulatory decision making, reporting requirements, and environmental thresholds that will span a period of years, with most planned actions being implemented by the end of 2024. For example, EPA is looking at PFAS chemicals that it has previously reviewed through the Toxic Substances Control Act (TSCA) New Chemicals Program, including those that it reviewed prior to the 2016 TSCA amendments. This could lead to currently approved PFAS being disapproved. EPA also recently launched a stewardship program to encourage companies to voluntarily withdraw previously granted PFAS low volume exemptions (LVEs), and is currently revisiting past PFAS regulatory decisions and addressing those that are insufficiently protective.
Given this plan, it is unlikely that a formal federal ban will be implemented in the near term. However, a formal withdrawal of an LVE or other similar action could have substantially the same effect. Thus, and for all the reasons described above, now is the best time for companies to begin planning and taking action to address PFAS packaging.
Alternative Options
The good news is that emerging technologies are allowing for a mostly seamless transition between PFAS packaging and safer, more environmentally friendly packaging with the same qualities that PFAS packaging is known for. Already, numerous companies are offering sustainable, PFAS-free packaging to accommodate the expected boom.
Two of the most common types of paper that provide barrier protections (i.e., grease and water resistance) are natural greaseproof paper (NGP), which is made through the refinement of wood pulp, and vegetable parchment. These two materials both have a dense cellulose structure that confers grease resistance. Additionally, novel applications using common plant-based fibers have shown great promise.
The creation of new types of sustainable, PFAS-free packaging is creating significant market opportunities for forward-looking companies. Given the regulatory outlook, that will only increase, as companies expand further into this area and deploy more resources to development and innovation. Consequently, we should expect to see the continuing proliferation of novel packaging products that will serve the same purpose as PFAS, but without the concomitant health and legal risks. Thus, we again advise companies to take steps now to prepare for the changes ahead.
Chappelle is a food industry lawyer and a consultant at Food Industry Counsel, LLC. Reach him at [email protected]. Stevens, also a food industry attorney, is a founding member of Food Industry Counsel, LLC, and a member of the Food Quality & Safety Editorial Advisory Panel. Reach him at [email protected].
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