Fast food restaurants and grocery chains are joining a growing number of states to eliminate “chemicals forever” from food packaging, despite federal approval that allows PFAS to touch what people eat.
Burger wrappers, salad bowls, pet food bags, and other wrappers use some of the chemicals in the PFAS family to repel oil and grease. Companies also use per- and polyfluoroalkyl substances to protect food processing equipment from heat and other stressors.
But some PFAS do not break down in the environment, and their links to health issues ranging from high cholesterol to cancer have raised alarm bells in the United States and abroad.
Denmark, Maine, new York, Washington, and Vermont have already banned PFAS from food packaging, while Minnesota, new York, and Connecticut have purchasing policies prohibiting packaging with chemicals. California, Minnesota, and Maryland are considering phase-out laws and / or developing regulations.
McDonald’s Corp., Wendy’s Co., and Whole Foods Market, Inc. are among at least 15 companies that have announced policies in recent years to phase out PFAS from the packaging they use or sell.
The more states and companies ban PFAS from food packaging, the more the practice will become the industry standard and expectation, said Emily M. Lamond, an attorney in the environmental department at Cole Schotz PC.
It is “death by a thousand cuts,” she said. “Every action creates public attention, creates even more pressure and attention.”
Eight nonprofits added more pressure on Thursday. They petitioned the Food and Drug Administration prohibits all PFAS, which accumulate in the body, packaging and other materials that touch food.
Representative Debbie Dingell (D-Mich.) Also plans to reintroduce legislation requiring the FDA to ban all use of PFAS in food packaging.
“Congress never intended to allow persistent and toxic chemicals in food or packaging,” she told Bloomberg Law in an email.
Meanwhile, an emerging area of consumer lawsuits over PFAS in packaging is further incentive for companies to seek alternatives, which sstate and international agencies identify. Wax, silicone, denser paper, and clay-based coatings are among possible PFAS substitutes for some products, those agencies said.
All of these actions and a basic argument are contributing to change, said Mike Schade, who leads the Mind the Store campaign, which has pushed companies for years to phase out dangerous chemicals, including PFAS, from food packaging.
“Food packaging is used once,” he said. “You go to Burger King, buy a Whopper and fries, and throw the wrapper away after you step on them. Yet chemicals can last forever in the environment.
Growing company policies
Chipotle Mexican Grill, Inc .; Filing Offices, LLC; and Koninklijke Ahold Delhaize NV, which owns grocery stores and food delivery services like Food Lion, the Giant Co. and Fresh Direct, are among more than a dozen companies with some type of PFAS in the policy of exclusion of food packaging confirmed by Bloomberg law.
Chipotle has phased out PFAS from bowls used in the United States and Canada, with bowls in Europe to be targeted this quarter, according to a recent statement.
“Production is underway to phase out PFAS from other packaging items by the end of this year,” he said.
Wendy’s in April, announced its goal of removing PFAS from take-out bags, sandwich wrappers, fry cartons and other ‘consumer-oriented’ packaging in the United States and Canada by the end of the year. ‘year. And McDonald’s, which excluded some PFAS from food packaging in 2008, is working to remove all added fluorinated compounds from packaging used around the world by 2025.
More companies need to step in, said José Bravo, coordinator of the Campaign for Healthier Solutions. The group wants dollar store chains, which often serve as a de facto grocery store in low-income neighborhoods and communities of color, to limit PFAS and other chemicals in the products they sell.
But voluntary action is not enough, said Tom Neltner, director of chemicals policy for the Environmental Defense Fund, which spearheaded Thursday’s regulatory petition. He highlighted the findings of a PFAS sampling report released last month by a coalition of EU environmental groups.
In Denmark, which banned PFAS in paper and cardboard food packaging in July 2020, none of the McDonald’s French fries bags tested contained PFAS. But bags of fries sold by McDonald’s in the Czech Republic and the UK did, according to the report.
Governments’ “rules matter” and the FDA hasn’t done enough, Neltner said.
The FDA has restricted some PFAS over the past decade. He secured voluntary agreements BASF Corp., EI DuPont de Nemours & Co., and Clariant Corp. in 2011 to eliminate the old “long chain” PFAS which are no longer manufactured or used.
Anchroma Management GmbH, AGC Chemicals Americas Inc., and Daikin America, Inc. all have volunteered to phase out some new “short chain” PFAS by the end of 2023 after the FDA wrote to them with concern in 2019.
Efforts to accelerate phase-out “will disrupt a safe, proven and scientifically-based process of moving to alternatives and could lead to less well-studied replacements and greater risk to the public,” Daikin said in a statement.
The FDA has declined to say whether or how many PFAS will remain on the market after these new chemicals are no longer in use.
There is no fixed definition of PFAS; the term includes a diverse range of chemical compounds, the FDA said. A small subset was recently identified as of concern and is in the process of being removed from food contact materials, the agency said in a statement.
“All food contact substances go through FDA pre-market review and must meet strict data requirements to demonstrate their use is safe,” he said. .
Actions sought by the FDA
The petitioners requested four more actions from the FDA. The first three build on concerns the FDA has had about the PFAS that it has already worked on to get out of the market. More specifically, the groups asked the agency to:
- revoke all food contact authorizations for PFAS that it has granted to companies,
- determine whether other chemicals allowed to touch food based on company certification of their safety rather than agency review have the same characteristics, and
- prohibit PFAS in both packaging and food handling equipment.
Finally, the agency should require industry to submit data proving that “per- and polyfluorinated compounds,” or PFCs, are safe, the petitioners said. They used the term PFC because it includes more fluorochemicals than the agency’s definition of PFAS, Neltner said.
The petition follows years of EDF studies into the toxicity of PFASs found on manufacturers’ websites, studies submitted to the FDA, and letters that FDA scientists have sent to PFAS producers expressing their concerns. concerns about the potential harmful effects of chemicals.
The agency has 180 days to respond to the petition.
VIDEO: EPA says more than 600 PFAS chemicals are on the market in the United States and are rushing to regulate PFAS, while the federal government is lagging behind.
Go to court
Meanwhile, consumers are taking their concerns to Federal Court.
Three consumer lawsuits filed in U.S. District Court for the Northern District of California alleged that several companies violated California consumer laws by fraudulently claiming that food packaging containing PFAS was compostable.
If customers had known that PFAS was in the package, they would not have bought it because the chemicals do not break down, the complainants say.
Two of the cases, Ambrose vs. The Kroger Co., and Digiacinto v. Albertsons Companies, Inc., are pending. A third case, Nguyen v. Amazon.com Inc., was fired after the complainant’s lawyer could not reach him for months.
The cases illustrate the trend of using more and more types of liability claims to target more companies in the supply chain, said Ally Cunningham, partner in Lathrop GPM’s environmental and tort practice group.
“Win or lose, I think these cases will likely inform retailers about their decisions about transporting and advertising products containing PFAS,” Cunningham said.
Although the case against Amazon was dropped, the company stopped selling single-use catering items made with PFAS, she said. “Even in the absence of regulation, litigation has an impact on the industry.”
The American Chemistry Council, which represents chemical manufacturers, opposes “actions taken that are not consistent with available science,” spokesman Tom Flanagin said.
The ACC works with state and federal government policy makers, including the FDA, to encourage “strong, science-based regulations,” he said.
The specific timeline and policies that will lead to the use of PFAS in food packaging is unclear, noted Cunningham of Lathrop GPM. But the trend to eliminate them is growing and companies aim to please their customers, she said.
“Consumers would probably be quite happy to know that PFAS are being phased out of their food packaging,” she said.
For updates on state-level PFAS regulations and legislation, see Bloomberg Law’s PFAS State Activity Tracker here.