May 24, 2022

Volume XII, Number 144


May 23, 2022

Subscribe to Latest Legal News and Analysis

PFAS In Food Limit Set By Europe – Will The U.S. Follow?

On September 17, 2020, the European Food Safety Authority (EFSA) announced the publication of the final version of its latest scientific opinion on the risk to human health from the presence of PFAS in food. The EFSA determined that a tolerable weekly intake (TWI) level of 4.4 nanograms per kilogram of body weight from food was appropriate. The TWI level applies to four PFAS – PFOA, PFOS, PFHxS, and PFNA. The EFSA issued its revised TWI after a two month comment period and several months spent considering the comments.

Previously, in 2018, the EFSA established food intake levels for two PFAS – PFOS and PFOA; however, the limit set at the time was 13 nanograms per kilogram of body weight for PFOS and 6 nanograms per kilogram of body weight for PFOA. The agency indicated that it re-evaluated these levels and included two additional types of PFAS due to the growing body of scientific literature related to PFAS in food.

The EFSA is the agency of the European Union (EU) that provides scientific advice and recommendations on existing and potential risks associated with the food chain. Established in 2002, the EFSA has wide latitude in recommending to the EU regulations that impact food supply chains, including food for both human and animal consumption, animal health and welfare, plant protection and overall plant health.

The EFSA’s publication with respect to PFAS in food is significant for two reasons. First, it is the latest PFAS regulation out of the EU in 2020, which has already seen much action on the regulatory front for PFAS. Significantly, the EU is expected to announce its decision in the fall of 2020 as to whether it will issue “action steps” for PFAS, which may include a ban on all types of PFAS for some applications. This would be a significant regulation, as it would be one of the first to regulate the thousands of PFAS chemicals in one sweeping regulations.

Second, while the EU is generally seen as ahead of the United States regulatory agencies in many areas, including PFAS, the EFSA’s determination may place increasing pressure on other global regulatory bodies, including the World Health Organization, to make similar findings or at least lend support to the regulations. This, in turn, will place pressure on agencies in the United States (primarily, the FDA, which regulates food safety in the United States) to set limits for PFAS in food. Thus far, the biggest pressure point for PFAS regulation in the United States has been with respect to drinking water, which is seen as the most prevalent form of PFAS consumption by citizens. However, food may find itself not far behind in the public outcry realm, as it is only natural that food and water consumption, as the most direct sources of PFAS ingestion, will be tackled first by agencies looking to respond to ever-increasing public pressure.

Should the United States regulate PFAS in food as the EU has chosen to do, a wave of lawsuits can be expected to follow. The first wave will naturally target food manufacturers and processors. However, the agricultural sector would not be immune to lawsuits, as the argument would surely be raised that millions of gallons of PFAS-contaminated water was used by the industry to grow the final food products. This will in turn lead to third party claims against nearby businesses or property owners that may have contributed to PFAS pollution in the areas.  While likely several years down the road, prudent companies involved in some way in the food supply chain would be well advised to examine possible sources of PFAS contamination in supply chain products, water sources, or end products sold to consumers. Determining the full scope of the issue is the first step in isolating the source of the problem and ultimately taking action to remedy the issue.

©2022 CMBG3 Law, LLC. All rights reserved.National Law Review, Volume X, Number 288

About this Author

John Gardella Environmental Law Attorney CMBG3 Law Firm

John Gardella is a Shareholder at CMBG3 Law in Boston, a law firm specializing in the regulatory, litigation, and compliance aspects of numerous environmental and toxic torts issues. He is a member of the firm’s PFAS Team, which counsels clients on PFAS related issues ranging from state violations to remediation litigation. Mr. Gardella has over 15 years of experience litigating environmental and toxic torts matters, including asbestos, PFAS, benzene, lead paint, mold, talc, hazardous waste and pollution matters. He is a successful trial attorney with over 75 verdicts to...