Per- and polyfluorinated substances (PFAS) are a group of man-made chemicals that have been widely used in various industrial and consumer products due to their unique properties of heat and water resistance, nonstick properties, and chemical stability. However, these chemicals have been associated with several health and environmental concerns, including cancer; developmental issues; and contamination of soil, water, and food. PFAS have been found to be present in food packaging and food (migration from packaging). This paper is a snapshot of federal and state regulation and litigation of PFAS in food. Places to look for PFAS in food packaging: any plant fiber derived material will likely have a PFAS coating (pizza boxes, microwave popcorn bags, and fast-food wrappers). While this coating is approved for food contact by FDA, some states are not on board and individual retailers (Albertsons) may want to exclude PFAS from their shelves as well.
In the United States, the regulation of PFAS in food packaging is primarily the responsibility of the Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA).
The FDA regulates the use of PFAS in food packaging materials, including coatings, paper, and paperboard. The agency has established regulations for the use of PFAS in food packaging materials that limit the migration of these substances into food. The FDA has set specific limits for some PFAS, such as perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), but not for others.
In addition, the FDA has issued guidance documents to industry regarding the use of PFAS in food packaging. In 2020, the agency issued a draft guidance document that recommended that manufacturers of food packaging containing PFAS submit data to the FDA to assess the safety of their products.
The EPA regulates the use of PFAS in the environment, including in drinking water and food packaging. The agency has established health advisory levels for some PFAS in drinking water but has not yet set any regulations for PFAS in food packaging.
In February 2021, the EPA issued a final rule that restricts the use of certain long-chain PFAS in products, including food packaging. The rule bans the manufacture, import, processing, and distribution of products containing long-chain PFAS that have been phased out of production in the United States.
Overall, several states have taken steps to regulate PFAS in food packaging, with some enacting comprehensive bans on all PFAS chemicals, while others require manufacturers to disclose the use of PFAS in their products. These regulations aim to protect public health and the environment from the harmful effects of PFAS. However, it is important to note that these regulations may not be uniform across different states, leading to potential confusion for manufacturers and consumers.
In addition to state-level action, some retailers and food companies have also taken steps to address the use of PFAS in food packaging. For example, in 2019, McDonald's announced plans to eliminate PFAS from its food packaging by 2025. Other companies, such as Subway and Dunkin', have also pledged to phase out the use of PFAS in their packaging. Retailers such as Ahold Delhaize, Albertsons, Trader Joe’s, and Whole Foods have all taken steps or committed to removing PFAS from their shelves.
Consumer class action lawsuits involving PFAS in food packaging have been on the rise in recent years. PFAS are a group of man-made chemicals that have been widely used in various industries due to their unique properties, including heat resistance and nonstick qualities. However, growing concerns about the potential health risks associated with PFAS exposure have led to legal actions against companies involved in the production and use of PFAS-laden food packaging. This article explores the emergence of consumer class action lawsuits related to PFAS in food packaging, highlighting the key issues and implications for both consumers and the industry.
In the context of PFAS in food packaging, consumers have alleged that companies failed to adequately disclose the presence of PFAS in their products, thereby misleading consumers and potentially exposing them to health risks. These class action lawsuits seek compensation for the affected consumers, as well as injunctive relief to prevent further use of PFAS in food packaging or more transparent labeling practices.
One of the primary legal challenges in PFAS class action lawsuits is establishing a direct link between exposure to PFAS in food packaging and specific health problems experienced by consumers. Proving causation can be complex due to the widespread use of PFAS in various consumer products and the potential for multiple sources of exposure.
However, despite these challenges, several high-profile cases have garnered attention and initiated a broader conversation about the need for increased regulation and transparency in the use of PFAS. As a result, some companies have voluntarily phased out the use of certain PFAS compounds in their food packaging, while others have faced regulatory actions and stricter scrutiny from consumers and advocacy groups. Here are several examples:
| Company | Product | Case |
|---|---|---|
| McDonald’s | Fast Food Packaging | Clark v. McDonald’s Corp., No. 3:22-cv-628 (S.D. Ill.). |
| Burger King | Fast Food Packaging | Hussain v. Burger King, No. 4:22-cv-02258 (N.D. Cal.); |
| Kraft | Juice Drink | Toribio v. The Kraft Heinz Company, FILED: NOVEMBER 29, 2022 § 1:22-CV-06639 |
| Coca-Cola | Simply Tropical fruit juice | Lurenz v. The Coca-Cola Company et al., FILED: DECEMBER 28, 2022 § 7:22-CV-10941 |
| BioSteel | Sports Drink | Bedson v. BioSteel Sports Nutrition Inc., FILED: JANUARY 27, 2023 § 1:23-CV-00620 |
| CAVA | Salad Bowls | Hamman et al. v. Cava Group, Inc., FILED: APRIL 27, 2022; § 3:22-CV-00593 |
From an industry standpoint, the increasing number of lawsuits underscores the importance of proactively addressing concerns regarding the use of PFAS in food packaging. Companies that prioritize safer alternatives, invest in research and development for PFAS-free packaging solutions, and improve transparency in labeling are more likely to mitigate legal risks and gain consumer trust in an evolving market.
The increase in federal and state regulation coupled with the emergence of consumer class action lawsuits related to PFAS in food packaging reflects the growing awareness and concerns regarding the potential health risks associated with these chemicals. As regulators and consumers become more informed about the presence of PFAS in food packaging and its potential impact on their well-being, they are seeking legal recourse to hold companies accountable.
These regulations and lawsuits have the potential to shape the future of the food packaging industry, prompting companies to reassess their practices and adopt safer alternatives. Moreover, the regulatory landscape is also evolving, with certain states enacting comprehensive bans on PFAS in food packaging and companies voluntarily phasing out their use of these chemicals.
Ultimately, the goal is to ensure the safety of consumers and the environment by reducing or eliminating the presence of PFAS in food packaging, while identifying and minimizing risk to companies. This requires a collaborative effort between regulators, industry stakeholders, and consumers to promote transparency, innovation, and responsible practices that prioritize public health.
