PFAS (per- and polyfluoroalkyl substances), often referred to as "forever chemicals," have earned their nickname due to their persistent nature, which results from their chemical structure being centered on highly resilient fluorine-carbon bonds. Their longevity enhances our daily lives in many ways—such as by creating more effective surface treatments, non-stick and water-repellant products, and smudge-proof and waterproof cosmetics. Food containers (e.g., fast food packaging) also benefit from PFAS, which imparts, among other things, a resistance to saturation. 

The fact cannot be overlooked, however, that a number of researchers, in addition to government agencies, have associated PFAS with certain adverse health effects. Their resiliency, therefore, may be a double-edged sword—particularly in conjunction with food contact materials. Since they do not break down easily in the body, PFAS concentrations tend to increase rather than diminish over time.

In light of these concerns and the prevalence of PFAS in consumer products like food packaging, many state and local governments, as well as public interest organizations, have begun enacting or promoting legislation that would regulate the implementation of PFAS in consumer products. These bans typically prohibit the sale of certain consumer products containing "intentionally" added PFAS—in perhaps tacit acknowledgement of PFAS's present ubiquity. Such legislative bans run the gamut of products in which PFAS is typically found. For example, Colorado's ban phases out the use of intentionally added PFAS in cosmetics, indoor textiles, food packaging, juvenile products, and oil and gas products, to name a few—some by January 1, 2024 and others by January 1, 2025. 

Other states have passed similarly sweeping bans, including New York, Maine, Minnesota, and California. Among all states that have enacted some form of legislation, food packaging specifically has been a frequent target, with so far 12 states (California, Colorado, Connecticut, Hawaii, Maryland, Maine, Minnesota, New York, Oregon, Rhode Island, Vermont, and Washington) enacting bans.¹ It stands to reason, therefore, that as more states enact similar bans, they too will target PFAS-containing food packaging. 

In the public interest sector, certain advocacy groups have begun advocating for uniform consumer product-related PFAS regulation. For example, in May 2023, the Northeast Waste Management Officials' Association released its Draft PFAS Prevention Model Act in support of a "virtual elimination of the environmental releases of PFAS into the environment."² The Draft PFAS Prevention Model Act provides state legislatures with a variety of policy options to adopt based on "jurisdictional priorities."² The restrictions highlighted in the Draft PFAS Prevention Model Act parallel a larger movement toward broad-based bans on PFAS. A notable example is Section 6 of the Draft PFAS Prevention Model Act, which provides that no product—including food packaging—with any amount of PFAS may be offered for sale or distribution unless the amount of PFAS added is deemed "unavoidable," such that the product is beneficial to the environment and there are no technically feasible or comparably priced alternatives.²

PFAS-containing food packing has not only been the target of regulation, but also somewhat recently of private litigation. At its onset, PFAS litigation focused primarily on water contamination through the use of PFAS-containing firefighting foam and certain industrial and manufacturing uses. Recently, however, the plaintiff bar has begun to take a broader focus, targeting manufacturers and sellers of PFAS-containing consumer products. Interestingly, because connections between PFAS and adverse health impacts are still being explored through study, these early lawsuits have infrequently been based on alleged bodily injury but rather on alleged misrepresentations regarding their ingredients and false advertising. For example, in a class action filed in April 2022, a putative class contended that the fast food giant Burger King misled its customers by representing its products to be "safe" and "sustainable."³ The class alleges that despite this, the packaging for Burger King's "Whopper" burger contained 249.7 parts per million (ppm) of total organic fluorine, whereas the Environmental Protection Agency's limit for safe consumption is only 0.0007 ppm.³

The ban on PFAS in food packaging and this uptick in consumer products litigation has already caused certain food and beverage companies to ditch PFAS in their food contact materials. For example, Wendy's, Chipotle, Starbucks, McDonald's, Burger King, Taco Bell, Cava, and Sweetgreen have each stated that they intend to remove PFAS from food contact materials, with most setting aspirational timelines to do so.⁴

So, is it time to consider a change? Setting aside for the moment whether or not PFAS in fact poses any health risk, users of PFAS-containing food packaging are becoming litigation targets. We also see a growing trend in prohibiting the addition of PFAS in food packaging, and many companies have already committed to leaving PFAS behind. For these reasons alone, food and beverage companies are behooved to at least evaluate whether their packaging contains PFAS and, if it does, consider alternatives. In fact, in the face of regulation, companies may ultimately have no other choice. As such, companies may wish to consider taking action early on so as to have the flexibility to do so on their own terms. Conversely, there is little benefit in being one of the last to do so, particularly if it would make the company a more apparent target for litigation. In sum, as a practical matter, there is no better time to think about PFAS than now.

References

1. Safer States. "First-in-nation ban on PFAS 'forever chemicals' in menstrual products, cleaning ingredients, cookware, and dental floss signed by Minnesota Governor." Press Statement. May 25, 2023. https://www.saferstates.org/news/first-in-nation-ban-on-pfas-forever-chemicals-in-menstrual-products-cleaning-ingredients-cookware-and-dental-floss-signed-by-minnesota-governor-today/#:~:text=Twelve%20states%20(CA%2C%20CO%2C,on%20oil%20and%20gas%20products
2. Northeast Waste Management Officials' Association. Draft PFAS Prevention Model Act. May 2, 2023. https://www.newmoa.org/wp-content/uploads/2023/05/NEWMOA-Draft-PFAS-Prevention-Model-Legislation.pdf.
3. Hussain v. Burger King Co. Case No. 4:22-cv-02258. April 11, 2022.
4. John, Julia. "Wendy's, Chipotle Remove PFAS From Consumer Packaging." Chemical Watch. May 9, 2022. https://chemicalwatch.com/478611/wendys-chipotle-remove-pfass-from-consumer-packaging.