The US Food and Drug Administration (FDA) recently announced that manufacturers have completed the voluntarily phase-out of the use of certain per- and polyfluoroalkyl substances (PFAS) in grease-proofing agents for food packaging.
PFAS consist of a large group of synthetic chemicals that have been used widely in consumer products and industrial processes since the 1950s for a broad range of uses, including to keep food from sticking to cookware or packaging, or make clothes resistant to stains. The FDA’s announcement concerns grease-proofing materials that contain the short-chain PFAS that contain 6:2 fluorotelomer alcohol (6:2 FTOH), such as fast-food wrappers, microwave popcorn bags, take-out paperboard containers, and pet food bags.
The FDA’s approach to the voluntary phase-out of PFAS in grease-proofing agents for food packaging shows a willingness to act more quickly to remove certain food ingredients from the market than the lengthy and burdensome notice-and-comment rulemaking process would otherwise allow.
As the agency continues to review available data to ensure that the limited authorized uses of PFAS in food-contact applications are safe, it may continue to seek commitments from manufacturers to cease the use of other types of substances that contain PFAS in food packaging. As we have previously discussed, the FDA may adopt this approach for other food contact substances as well, such as certain products that contain microplastics.
Although the FDA has not set levels for most chemical contaminants in food, including PFAS, the agency has not shied away from enforcement actions when it has determined that certain levels of contaminants found in certain food products may pose a health concern. For example, the FDA recently issued an import alert for certain seafood products that contain perfluorooctanoic acid (PFOA), a type of PFAS.
The FDA’s announcement on the phase-out of certain PFAS in grease-proofing agents for food packaging comes amid a growing trend of state-level restrictions on the use of PFAS in food-contact materials. Eight US states (CA, CO, CT, MD, MN, NY, OR, and VT) have already implemented bans of all PFAS in food contact materials, while four states (HI, ME, RI, and WA) have enacted phase-outs of PFAS in food packaging.
Minnesota has also banned the use of PFAS in cannabis and hemp-derived product packaging. Meanwhile, an additional eight states (IL, IA, MA, MI, NH, NJ, PA, and TN) have introduced legislation since 2023 aimed at banning or phasing out the sale and distribution of PFAS-containing food packaging. These state-led initiatives are driving momentum and encouraging voluntary actions on the part of manufacturers to seek alternatives to PFAS-containing packaging.
In parallel with this state regulatory action is an increasing trend in PFAS-related consumer litigation. Since 2022, there have been dozens of class action lawsuits filed against food manufacturers that use PFAS in their product packaging on the basis of violations of state consumer fraud and deceptive food packaging and advertising laws. Class action litigants are primarily asserting allegedly deceptive labeling claims associated with PFAS in food-contact packaging, such as beverage containers, microwave popcorn bags, and fast-food wrappers.
Typically, litigants have alleged that companies have misleadingly labeled, marketed, or advertised a food product as safe, natural, or healthy despite the product packaging containing PFAS. These litigants generally seek monetary damages as well as injunctive relief to stop the sales of the food products or prevent the further use of PFAS in food packaging.
In view of the FDA’s announcement and increasing state action, food manufacturers find themselves at a pivotal juncture. The FDA’s announcement indicates that the agency may be poised for further action regarding PFAS. Regulated entities should assess their manufacturing processes and packaging practices proactively and stay up to date of the changing legal and regulatory landscape to ensure compliance with state laws and federal guidelines.
This may entail conducting thorough reviews of supply chains to identify and phase out the use of materials containing PFAS, including ensuring food packaging imported into the United States is PFAS free or is reported to the EPA, if required. Transitioning to non-PFAS alternatives may also be perceived as a competitive edge for food manufacturers, fostering brand loyalty among consumers.
The FDA’s announcement, and ongoing consumer class action litigation, should also serve as a reminder to food manufacturers and marketers of the importance of setting out environmental claims with precision and ample substantiation, as well as the need for clear indemnification provisions in contracts with suppliers in the event that litigation arises relating to the presence of PFAS in products.