October 27, 2021

Volume XI, Number 300

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Companies that Manufacture or Distribute Pesticides or Foods in Polyethylene Containers Should Track FDA, EPA, and USDA Activities on PFAS

In January, EPA obtained data that some mosquito control pesticides contained detectable levels of certain PFAS.  In a joint investigation with the State of Massachusetts, EPA found that fluorinated high-density polyethylene (HDPE) containers containing a mosquito control pesticide were leaching PFAS into the product. Now, EPA is testing different brands of fluorinated containers to determine whether they contain and/or leach PFAS and has asked the states with existing stocks of these pesticides to discontinue use as EPA evaluates the issue. Information on the EPA activities can be found here. EPA also began working with USDA and FDA to get a better understanding of the use of fluorinated polyethylene containers for pesticides and other products.

Likely prompted by the coordination with EPA, on August 5th, FDA issued a letter to manufacturers, distributors, and users of fluorinated polyethylene food contact articles. The FDA letter can be found here. FDA is reminding these users that there is an FDA regulation governing the production of these containers. The regulation stipulates that fluorinated polyethylene containers for food contact use may only be manufactured by modifying the surface of the molded container using fluorine gas in combination with gaseous nitrogen as an inert diluent. The regulation does not authorize fluorination in the presence of water, oxygen, or gases other than nitrogen.

Considering the strong congressional interest in understanding and mitigating PFAS exposures, companies should continue to expect EPA, USDA, and FDA to look across the entire value chain for PFAS substances. For instance, at EPA, Administrator Regan asked his PFAS Advisory Council (the EPA Council on PFAS) to provide him with initial recommendations to update a multi-year PFAS strategy. Those recommendations were due on August 5th and are currently being reviewed.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 222
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About this Author

Nancy Beck Regulatory Science Professional Environmental Compliance Hunton Andrews Kurth
Director of Regulatory Science

Nancy provides industry leaders with advice related to the impact of environmental policy, including chemical regulations and compliance programs, applying her in-depth knowledge and applied public health experience as a PhD toxicologist.

Nancy has over twenty years of applied public health experience, sixteen of which were from her time in government, including senior leadership positions at the Environmental Protection Agency (EPA) and the White House. As a PhD toxicologist she has a deep scientific understanding of chemical risk assessment,...

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Matthew Z. Leopold Environmental & Energy Attorney Hunton Andrews Kurth Washington, DC
Partner

Matt advises and defends clients across industries with the strategic insights as former General Counsel for the US Environmental Protection Agency, former General Counsel for the Florida Department of Environmental Protection and a former environmental litigator at the US Department of Justice.

Matt provides his clients with in-depth experience and knowledge respecting the pivotal recent changes in environmental regulation. As EPA General Counsel, he counseled on the development and defense of virtually every significant regulation proposed by EPA since 2017 and was personally...

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Gregory R. Wall Environmental Litigation attorney Hunton Andrews Kurth Law Firm Richmond
Counsel

As a former US Environmental Protection Agency (EPA) senior attorney, Greg uses his deep agency, regulatory and enforcement knowledge to assist clients in solving complex environmental matters, with specialized expertise in CERCLA/Superfund, brownfields, RCRA, FIFRA and TSCA legal issues.

With over 15-years of experience in environmental law, Greg assists clients in regulatory counseling, enforcement defense, litigation, and transactional matters. His experience in both private and public practice, in particular at EPA, provides him the ability...

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