PFAS Compliance Planning Critical For Manufacturers

Aug 24, 2020 | Environmental, PFAS, Toxic Tort

Covid-19 has caused numerous changes to the restaurant and food industries in the United States, from increased sanitation to expanded exhaust ventilation requirements to social distancing and more.  However, one enormous change has come in a surprising area and is not related to the pandemic:  food packaging.  The United States Food and Drug Administration announced this summer that four manufacturers of per- and polyfluoroalkyl substances (“PFAS”) have agreed to voluntarily phase-out the sale of short-chain PFAS for use as a grease-proofing agent in paperboard and paper food packaging.  Many consumers are unaware that their takeout pizza boxes may contain PFAS, incorporated into various types of food packaging for its ability to repel grease, oil, and water.  Additional Massachusetts based restaurants have also announced their own intention to phase out PFAS from their packaging.

Why is this important?  There are numerous studies suggesting negative health impacts from exposure to long-chain PFAS compounds, including perfluorooctanoic acid (“PFOA” or “C8”) and some believe that the short-chain compounds share similar toxicity and result in comparable impacts on human health to their long-chain counterparts.  However, studies on the impacts of exposure to PFAS have so far been primarily focused on the long-chain compounds with few studies being conducted on short-chain PFAS.

The FDA previously published their own review of the impacts of PFAS in food packaging.  As part of their analysis, the FDA reviewed several animal studies focused on the impacts of health from exposure to a subgroup of short-chain PFAS varieties containing 6:2 fluorotelomer alcohol (“6:2 FTOH”).  The data from these studies suggest a possible persistence of 6:2 FTOH in humans from exposure through diet, although the doses in the study were higher than those expected in a normal human diet and the studies did not involve human subjects.  The FDA acknowledged that further studies are necessary to fully understand the possible risk to human health from exposure to PFAS-containing food packaging.

According to the FDA, three PFAS manufacturers will gradually phase out, over three years, the sale of some substances that contain the 6:2 FTOH for use in food packaging starting in January 2021.  An additional manufacturer has also informed the FDA that they have already stopped selling their own short-chain PFAS-containing products in the United States.

It is of the utmost importance for businesses along the whole supply chain to evaluate their own PFAS risk.  Public health and environmental groups urge legislators to regulate these compounds.  One major point of contention among members of various industries is whether to regulate PFAS as a class or as individual compounds.  While each PFAS compound has a unique chemical makeup and impacts the environment and the human body in different ways, some groups argue PFAS should be regulated together as a class because they interact with each other in the body, thereby resulting in a collective impact.  Other groups argue that the individual compounds are too diverse and that regulating them as a class would be over restrictive for some chemicals and not restrictive enough for others.  This is not the first time this debate has been raised when regulating chemicals and materials.  Experts initially debated whether to regulate asbestos as a class or by individual fiber type due to the varying potency levels for each fiber type.

Companies should remain informed so they do not get caught off guard.  Regulators at both the state and federal level are setting drinking water standards and notice requirements of varying stringency.  For any manufacturers, especially those who sell goods interstate, it is important to understand how those various standards will impact them, whether PFAS is regulated as individual compounds or as a class.  Conducting regular self-audits for possible exposure to PFAS risk and potential regulatory violations can result in long term savings for companies and should be commonplace in their own risk assessment.

CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.

Written By:

Alexandra M. Fraher, Esq.


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