Green Tracker: Federal bill to prohibit added PFAS in foodservice packaging advances in Senate

Restaurants may be forced to find packaging free of PFAS, or per- and polyfluoroalkyl substances often called “forever chemicals,” sooner than planned under federal legislation that advanced in the Senate this week.

The Keep Food Containers Safe from PFAS Act, was passed on Tuesday by the Senate Committee on Health Education Labor and Pensions with a bipartisan 13-9 vote. The bill was an amendment to the Food and Drug Administration Safety and Landmark Advancements Act of 2022.

Authored by Sen. Maggie Hassan (D-N.H.) and Sen. Lisa Murkowski (R-Alaska), the PFAS amendment is simple and broad: it would prohibit interstate commerce of food packaging that contains intentionally added PFAS, which are defined as a “perfluoroalkyl or polyfluoroalkyl substance that is man-made with at least one fully fluorinated carbon atom.” As approved, the ban would go into effect Jan. 1, 2024.

The legislation now advances to the Senate floor for a vote, and, if it passes, bill watchers say it will likely be conferenced with an FDA bill in the House. 

PFAS have been linked to a number of health issues, including infertility, thyroid problems, low birth weight and several types of cancer. The class of chemicals, which includes roughly 9,000 substances, are used in a number of products, including cosmetics, waterproof clothing, firefighting foam and nonstick cookware. In foodservice packaging, they have been used for years as a coating for containers and cups to prevent leakage by liquids or grease.

Earlier this year, tests by Consumer Reports found potentially dangerous levels of PFAS in to-go packaging from 24 large restaurant chains and grocery stores. McDonald’s, Burger King and Cava have faced lawsuits related to PFAS in packaging, though those chains have already pledged to phase out containers that include the chemicals by 2025 if not sooner.

A growing number of states have already taken regulatory steps to ban or limit the use of PFAS in foodservice packaging, including California, Colorado, Connecticut, Maryland, Maine, Minnesota, New York, Washington state and Vermont, according to the advocacy group Toxic-Free Future. Many manufacturers have also voluntarily eliminated the use of added PFAS, but supporters of the federal bill say a national standard is needed.

“Our lunch should never come with a side of ‘forever chemicals,’ so it’s great to see Congress joining retailers and states that have taken action to end the unnecessary use of this dangerous pollutant,” said Liz Hitchcock, director of Safer Chemicals Health Families for Toxic-Free Future, in a statement. “The best way to stop PFAS from contaminating drinking water, breast milk, wildlife and people is to end its use in everyday products like food packaging.”

The legislation comes as the movement to remove PFAS from the environment is gaining momentum. 

The Environmental Protection Agency on Wednesday issued four health advisories for drinking water related to certain types of PFAS, saying negative health effects can occur when concentrations are near zero or lower than the EPA can even detect. 

The agency has issued interim advisories on safety levels of certain PFAS in drinking water and final drinking water guidelines are expected later this year, along with a nationwide monitoring program.

The White House on Tuesday announced the first tranche of a $5 billion commitment to help communities rid their water supply of contaminants like PFAS, which have disproportionately impacted disadvantaged neighborhoods. 

Meanwhile, the U.S. Department of Agriculture has created an indemnity program for dairy farmers whose cows can’t be put on the market because of PFAS contamination. But still, the FDA says it is testing for PFAS in the food supply and several types of PFAS remain approved for food contact use.

For restaurants, a federal bill could help national chains navigate the growing patchwork of state regulations, but associate attorney Matt Walker of Chicago-based law firm Lathrop GPM said there will likely be some debate over the federal bill’s approach to both defining the PFAS to be banned and the science behind how those chemicals are measured. 

“As short as this bill is — it’s just a few lines — it’s pretty powerful,” Walker said. “So if you’re looking at how it’s currently drafted, it bans outright any type of PFAS in two years, which is pretty aggressive.”

Operators would still be forced to navigate stricter laws at the state level. California’s looming restrictions would ban intentionally added PFAS as well as PFAS that exist at a certain level organically. The chemicals have become so pervasive in the environment, it’s not possible to label packaging as entirely PFAS-free.

But in Washington state, for example, the prohibition is “more temperate,” Walker said, allowing time for research on safer alternatives.

Still, Walker, who handles environmental law, said PFAS-related toxic tort cases are on the rise, including restaurants and other industries where the chemicals are used.

“It’s a volatile time for those using food packaging,” Walker said. “I don’t think the food industry is completely caught off guard, they have probably seen this coming. … It is probably going to put a bit more responsibility on the food industry to consider how best to evaluate their supply chain and steps they’ll have to take.”

Contact Lisa Jennings at [email protected]

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