PFAS Legal Risks Increase for the Food and Beverage Industry
Regulators are increasing scrutiny over the use of per- and polyfluoroalkyl substances (PFAS) in the food and beverage industry. These substances, which have been used since the 1950s for non-stick properties in food packaging, present environmental persistence challenges. The U.S. Food and Drug Administration (FDA) has expanded its testing programs for PFAS and is considering setting action levels for certain products, although it has refrained from imposing formal bans.
The regulatory landscape at the state level is dynamic, with numerous states having enacted laws that impose restrictions on PFAS in products such as grease-resistant paper and food containers. California, for instance, has regulations like AB 1200 targeting added PFAS, with other states pursuing varied legislation that complicates compliance for companies distributing products nationwide.
Litigation risk is also rising, exemplified by ongoing class actions against notable restaurant and food brands over claims of toxic PFAS levels in packaging. Legal challenges focus on breaches of warranty, consumer protection violations, and demands for medical monitoring, contributing to a complex litigation environment characterized by inconsistent judicial outcomes.
Federal and State Regulations
The FDA maintains a watch on PFAS but has primarily utilized negotiated phase-outs of certain PFAS-based substances in food packaging over outright legal prohibitions. At the federal level, legislative attempts like the No Toxics in Food Packaging Act and the Keep Food Containers Safe from PFAS Act highlight the intention to ban these substances, yet they face legislative hurdles.
At the state level, diverse approaches are evident as states introduce new bills to extend regulatory control beyond food packaging to categories like cookware and cosmetics. This fragmented regulatory framework poses significant challenges for companies, necessitating thorough adherence to changing state legislations to avoid potential legal repercussions.
Litigation Trends
Consumer class actions have proliferated, often targeting companies based on PFAS contamination claims in product packaging. These actions draw from various consumer protection theories, contributing to the growing litigation risks for enterprises navigating PFAS scrutiny. While some legal battles have survived motions to dismiss, others have faltered due to insufficient pleading or lack of clearly established legal grounds.
Meanwhile, broader PFAS-related litigation is witnessing significant settlements, such as the substantial agreements with public water suppliers and chemical manufacturers in states like North Carolina and New Jersey, setting a precedent and providing resources and frameworks that might influence future cases in the food and beverage sector.
Risk Management Considerations
Food and beverage companies are advised to strategically evaluate their packaging and ingredient sourcing while incorporating PFAS-free benchmarks where feasible. Ensuring supplier due diligence, enhancing marketing and labeling accuracy, revisiting procurement agreements, and monitoring regulatory developments are critical measures to mitigate potential PFAS-related liabilities.
