Environmental Law Alert

PFAS in the Food and Beverage Industry: The EPA’s Next Target

April 12, 2023

The food and beverage industry faces a growing concern regarding per- and polyfluoroalkyl substances (PFAS), a group of synthetic chemicals that studies have shown may demonstrate adverse effects to health and the environment. As enforcement and litigation increase, these industries must understand the potential impacts to their businesses. This is especially true as PFAS are scheduled to become a “Hazardous Substance” under CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) in August of 2023.

This article explores the potential sources of PFAS in the food and beverage industry, the current regulatory landscape, and steps companies can take to mitigate exposure.

PFAS: Understanding the Risk

One significant route of potential PFAS exposure is through ingestion of contaminated food and water. Therefore, PFAS-contaminated ingredients or products may leave the food and beverage industry at risk for potential litigation. Some common sources of potential PFAS contamination in the food and beverage industry include contaminated water, food packaging, food processing equipment, and bioaccumulation in animals. Recent studies also discovered in high concentration of PFAS on dairy farms as well.

Regulatory Landscape

Regulation of PFAS varies by jurisdiction, with some nations and states enacting stricter standards than others. In the United States, the Environmental Protection Agency (EPA) has established a health advisory level of 4 parts per trillion (ppt) for two prominent PFAS chemicals found in drinking water, but no specific standards for PFAS in food currently exist.

EPA has announced plans to regulate PFAS chemicals through enforcement initiatives combined with its Strategic Roadmap. The Strategic Roadmap outlines the EPA’s plans to regulate PFAS through its existing major environmental programs by setting standards under CERCLA, the Safe Drinking Water Act, Resource Conservation and Recovery Act, Clean Water Act, Clean Air Act, Toxic Substances Control Act, and Emergency Planning and Community Right-to-Know Act.

Notably, Congress is currently considering a bill prohibiting food packaging that contains intentionally added PFAS called the “Keep Food Containers Safe From PFAS” Act. The body of the bill reads: “To amend the Federal Food, Drug, and Cosmetic Act to prohibit the introduction into interstate commerce of food packaging containing intentionally added PFAS.”
Food companies need to track this bill as the future designation of PFAS as a “Hazardous Substance” under CERCLA is sure to trigger litigation.

Various states have proposed or enacted more stringent regulations, and calls for increased federal oversight continue. Some states are in the process of enacting regulations outright banning the manufacture, use, and distribution of PFAS products. In the European Union, regulatory efforts are also underway, with some member states already implementing limits on PFAS in food.

Mitigating Exposure

Companies in the food and beverage industry may wish to take proactive measures to protect themselves against potential litigation risk.

Steps companies might consider taking include:

1. Identify and assess potential sources of PFAS: Understand how PFAS could be introduced into your supply chain and which steps may minimize exposure, such as changing water sources or using alternative packaging materials.
2. Integrate PFAS into risk management plans: Consider PFAS as part of your company’s broader risk management strategy, addressing possible concerns and potential impacts on your business, employees, and consumers.
3. Testing and monitoring: Regularly analyze both raw materials and finished products for PFAS contamination to ensure they meet safety standards and minimize risks to consumers.
4. Communicate transparently: Be transparent with customers about your company’s efforts to address PFAS concerns and clearly communicate any actions taken to mitigate potential risks.

As public and regulatory attention focuses on PFAS, it is crucial for members of the food and beverage industry to recognize and assess their risk. Proactive measures to identify sources of PFAS, mitigate exposure and risk, and communicate transparently with stakeholders can help businesses in the industry comply with evolving regulations and protect against litigation.