Perfluoroalkyl and polyfluoroalkyl substances (PFAS) are a big class of various chemical substances: greater than 12,000 have been recognized.* PFAS substances include a minimum of one fully-fluorinated carbon atom, which makes them persistent within the atmosphere. PFAS are used to make merchandise immune to warmth, oil, stains, grease, and water. Till lately, they’ve been seen as a helpful part of meals packaging supplies.
Nonetheless, there may be rising concern that PFAS will detrimentally influence human well being by both migrating from packaging into meals gadgets and be ingested by shoppers or ending up in landfills and migrating to soil and water. Because of this, federal and state businesses are contemplating restrictions or bans of both particular person PFAS compounds or PFAS as a category.
FDA actions
From the Sixties by means of the 2000s, the US Meals and Drug Administration (FDA) approved particular PFAS to be used in food-contact functions. These functions have been primarily used as oil and grease resistant coatings for meals packaging supplies. Below the meals contact notification (FCN) program, FDA performed scientific opinions of the substances to make sure their security for food-contact makes use of.
In 2012 and once more in 2020, FDA requested that some producers voluntarily withdraw their PFAS merchandise from use in food-contact functions. These withdrawals drew consideration to FDA’s course of for reviewing food-contact substances, and shopper teams now contend that the method is incomplete or insufficient. In January 2022, FDA issued a proposed rule searching for the authority to limit makes use of of food-contact substances for non-safety-related causes.
State actions
9 states have enacted rules to ban PFAS as a category in meals packaging with a minimum of 10 extra proposing to take action. Most of those rules deal with deliberately added PFAS, and a few go into impact inside months (New York on December 31, 2022 and California on January 1, 2023). State actions create a patchwork of rules that firms might want to change into conversant in to make sure compliance.
Testing for PFAS
To adjust to the growing rules, meals packaging could have to be examined for PFAS.
Packaging will be analyzed for whole natural fluorine (a surrogate measure for PFAS) or for particular person PFAS compounds. Current analytical strategies can detect minute quantities of PFAS current in packaging supplies. Challenges to conducting PFAS analyses embody the restricted variety of particular person PFAS compounds that may be analyzed, a scarcity of certified/accredited laboratories, excessive analytical prices, and lengthy turnaround occasions.
These points could also be exacerbated by the rise in demand for PFAS analyses attributable to increasing rules and elevated enforcement actions and litigation.
PFAS-related litigation has beforehand targeted on bodily hurt
Whereas regulatory scrutiny of PFAS is latest, litigation involving PFAS just isn’t. Over the previous decade, a whole lot of lawsuits have been filed involving allegations that publicity to those substances has prompted bodily hurt to people or environmental contamination.
The lawsuit involving DuPont is a notable instance: The case included allegations that chemical run-off from a PFAS substance contaminated groundwater which harmed the people who ingested that water, leading to billions of {dollars} in settlement payments – and the characteristic movie Darkish Waters (2019).
PFAS-related litigation alleging financial hurt
The latest and upcoming regulatory adjustments have spawned a brand new type of PFAS-related litigation focusing on meals merchandise, their packaging, and comparable shopper items. These lawsuits assert that plaintiffs have skilled financial hurt on the speculation that merchandise containing PFAS compounds render “wholesome,” “eco-friendly,” or “sustainable” merchandise mislabeled, and accordingly, the merchandise are price lower than what shoppers paid for them.
These financial loss instances carefully parallel the same improve in media consideration on the subject. In March 2022, Shopper Studies printed an article entitled “Harmful PFAS Chemical substances Are in Your Meals Packaging.”
Inside two months of the publication, 5 class motion lawsuits have been filed towards Burger King and McDonald’s (whose meals packaging was recognized as containing PFAS within the report). All of those instances contain purely financial loss claims.
The pattern towards ‘financial loss’ shopper class actions is critical. A survey performed by Sheppard Mullin revealed that between January 1, 2022 and August 1, 2022 alone, a minimum of 24 putative class actions focusing on packaged items purportedly containing PFAS have been filed. All search solely financial damages and none assert private harm from publicity to PFAS.
As financial loss instances proliferate, it’s prudent that firms think about the dangers of litigation related to their merchandise and promoting, and, come to an understanding of whether or not their merchandise adjust to the growing patchwork of federal and state legal guidelines governing these compounds.
* CompTox Chemicals Dashboard: PFAS Master List of PFAS Substances | USEPA; click here.
Authors: Abby Meyer (prime left), Jeffrey Parker (backside proper) and Khirin Bunker (center prime) of Sheppard Mullin; and David Liu, PhD (prime proper), Gavin Thompson, PhD (backside left) and Elizabeth Miesner (backside proper) of Ramboll US Consulting, Inc.