The U.S. Food and Drug Administration (FDA) announced certain food-packaging materials containing per- and polyfluoroalkyl substances (PFAS) will no longer be sold in the U.S. PFAS are a large, diverse, and complex family of man-made fluorinated chemicals used in the manufacturing of a wide variety of consumer and industrial products ranging from fire suppression foams to food wrappers. The FDA cites food-packaging materials as a major source of dietary exposure to PFAS. The “food packaging” addressed in the FDA’s announcement concerns items such as fast-food wrappers, microwave plastic bags, take-out paperboard containers and pet-food bags.

The FDA’s Announcement Marks Completion of Voluntary Phase-Out by Manufacturers

Since the 1960s, the FDA has authorized the use of specific PFAS substances in food contact applications such as non-stick pans and food packaging. However, in the early 2000s, the FDA began to raise safety concerns about certain PFAS compounds.

In July 2020, the FDA announced that it obtained a commitment from manufacturers to voluntarily phase out certain specific PFAS (6:2 flourotelomer alcohol or 6:2 FTOH) in grease-proofing food-packaging substances. The manufacturers agreed to begin a three-year “phase out” period starting in January 2021 for the sale of substances containing 6:2 FTOH. The FDA’s announcement in 2024 marks the fulfillment of that agreement. n addition, the FDA announced that PFAS manufacturers have stopped selling other currently authorized grease-proofing substances containing PFAS.

The FDA advises it will continue to conduct research and update its PFAS risk evaluations. The FDA claims that, based on currently available data, only paper and paperboard agents could result in potentially dangerous dietary exposure. At the same time, the FDA also continues to publish testing results for PFAS found in the general food supply.

Potential Further PFAS Regulation Highlights Need for Compliance Plans

This announcement could signal further FDA action on PFAS. Federal regulation could potentially preempt existing state bans on PFAS. To date, a number of states (including California, Colorado, Connecticut, Hawaii, Maine, Minnesota, New York, Vermont and Washington) have passed legislation either banning or regulating PFAS in food packaging. Several other states have begun to research PFAS in food packaging. Additionally, the FDA is continuing to obtain data and information on PFAS which may influence future federal regulation. Evolving scientific data and potentially overlapping federal/state regulations create an increasingly complex regulatory landscape for manufacturers of all consumer products that contain PFAS. In this environment, manufacturers of PFAS-containing products should continue to monitor federal and state PFAS regulation and develop a compliance plan that is appropriate for their particular products.

Our New York-based PFAS attorneys are following PFAS regulations and litigation matters throughout New York and the nation. If you have questions about the FDA’s announcement or the adequacy of your company’s current practices and policies regarding PFAS, please reach out to members of our Mass Torts and Industry-Wide Litigation team, Abbie Eliasberg Fuchs at 212-313-5408 and afuchs@harrisbeach.com; Christopher Palermo at (914) 298-3032 and CPalermo@HarrisBeach.com; Dominic Conoshenti at (212) 313-5436 and dconoshenti@harrisbeach.com; or the Harris Beach attorney with whom you most frequently work.