On November 18, 2021, the Keep food containers safe from the PFAS Act (“Act”) was introduced in the Senate and House, which proposed a ban on PFAS for food packaging in the United States. The bill, while incredibly brief, would accelerate efforts already underway by the food packaging industry to develop workable substitutes for PFAS in its products. Food packaging companies, however, should not assume that a ban on PFAS in food packaging or voluntary phasing out of PFAS will result in protection from future lawsuits.
Prohibition of PFAS in the food packaging proposal
The body of the bill presented to the House and Senate a few days ago reads: “Amend the Federal Food, Drug and Cosmetic Act to prohibit the introduction or delivery for the introduction into interstate commerce of food packaging containing intentionally added PFAS, and for other purposes. On the face of it, the bill is straightforward in intent, although the wording “intentionally added” can cause unforeseen problems.
As with many state bills that have passed legislation to ban PFASs from various products, the lack of a definition in the law of “intentionally added PFAS” opens the door to future debate on what constitutes ” intentionally added PFAS ”and how intention can be proven if a company claims that the presence of PFAS was due to unintentional acts on its part. Moreover, “intentionally added” by whom? The American manufacturer of food packaging only? What does the company source from overseas, the PFAS is not disclosed to the US company, and the company makes a product and sells it in the United States? PFAS added intentionally, or not? Dozens, if not hundreds, or machinations of this same hypothesis could easily be developed, but the law itself does not provide a clear answer. In the short term, if the law were to pass, it could lead to uncertainty and confusion for the company about compliance. In the long run, this could lead to legal challenges to the law.
Prohibition of PFAS does not amount to protection from prosecution
Companies can assume that if a ban on PFAS in its product type were passed, PFAS would naturally no longer be used and the company would not have to worry about future PFAS litigation. This is a grossly simplified view that ignores two very likely future trends in PFAS litigation – CERCLA landfill cleanups and product liability lawsuits.
According to the EPA, the United States has 3,091 active landfills and more than 10,000 closed landfills. Certainly, it would be fair to assume that many of these landfills contain food packaging waste, some of which likely contain PFAS. With the The EPA just reported that it intends to designate at least some types of PFAS as “hazardous substances” under CERCLA, and once a chemical is listed as a “hazardous substance” under CERCLA, the EPA has the power to order responsible parties to clean up sites contaminated with the designated chemicals, the cost being fully borne by the responsible parties. Alternatively, the EPA can clean up the site itself and then request payment of the costs from the responsible parties. Either way, cleaning up so-called Superfund sites can be expensive – from a few hundred thousand dollars for a small piece of land to hundreds of millions of dollars. The primary targets of these federal enforcement actions and prosecutions are landfill owners; however, the downstream result is lawsuits brought against companies that used landfills or whose products ended up in landfills for contribution to site clean-up costs. Thus, food packaging companies producing products containing PFAS, now or at any time in the past, run some risk of becoming embroiled in PFAS lawsuits, even if they stop using PFAS. in their products.
Further on the horizon (although not as far as some might think) are the PFAS product liability lawsuits that will be filed as more cancer-causing regulations and claims are made by the United States. EPA and other regulatory agencies. As recently as last week, the EPA said its data showed certain PFASs may be harmful to human health at levels well below what was believed, with at least one PFAS being considered for designation. probably carcinogenic ”. The carcinogenic designation could be the match that lights the fuse for PFAS product liability lawsuits, with food packaging an easy first-round target given the large amounts of food packaging consumers encounter on a daily basis and the potential for ingestion. by consuming food from the food packaging. product.
Food packaging companies should pay attention not only to the bill introduced to ban PFAS in food packaging, but also to the long-term effects that traditional use of PFAS in the final consumer product may have. A future CERCLA designation could trigger costly lawsuits, and as PFAS product liability lawsuits begin to arise, the food packaging industry could find itself at the forefront of future lawsuits.
© 2022 CMBG3 Law, LLC. All rights reserved.Revue nationale de droit, volume XI, number 334