By Mara Cohara, Ally Cunningham and Matt Walker, Lathrop GPM
Fast-food giant Wendy’s recently announced that it would phase out PFAS – per- and polyfluoroalkyl substances used in a bevy of everyday products – from its consumer-facing packaging in the United States and Canada by the end of this year. McDonald’s made a similar move in January, though its phaseout is set for 2025.
That PFAS is now in the headlines seemingly every day is a sign of the turning point for the so-called forever chemicals, which are so ubiquitous in modern life. This critical point bears close watching for restaurant owners across the country – whether they’re small independent eateries or national brands – and really any organization that uses food packaging that could contain PFAS.
Here’s an overview of the latest developments in that area; how consumer, political, legal and regulatory winds are converging; and how leaders of the nation’s restaurants and food processing companies should move forward.
Why PFAS pressure is increasing
PFAS have been around for decades and were actually discovered by accident in the 1930s. Chemists at 3M and DuPont were researching carbon-based chemical reactions and discovered that an unusual coating remained in a testing chamber after an experiment. The substance proved totally resistant to any efforts designed to break its atoms apart. For decades, PFAS chemicals have been used in thousands of products, from firefighting foam to carpeting – to food packaging.
But PFAS durability means it’s difficult to get rid of after use, and growing awareness of the potential dangers of PFAS – initial (and still developing) research suggests they may be linked to certain cancers, liver and kidney issues, and other health problems – has led to increasing public and regulatory scrutiny. The Biden administration and its new EPA chief have prioritized increased regulation including designating PFAS as a hazardous substance or hazardous waste.
That hasn’t happened yet. But there are significant moves at the federal level – some of which predate Biden’s election. The FDA, which authorizes use of certain PFAS in non-stick cookware, paper/paperboard food packaging and other products, announced a voluntary phaseout of certain PFAS in food packaging last year. But more sweeping moves could come through legislation, including the proposed PFAS Action Act of 2021 and the Keep Food Containers Safe from PFAS Act, expected to be reintroduced this year. The latter would give the FDA authority to ban PFAS in food containers and cookware.
Given a closely divided Congress, it’s unclear how much of those acts will become law. But it’s likely some aspects will, even if they’re part of other legislation. There’s also action at the state level, with Maine, New York, and Washington blocking use of PFAS in food packaging, to varying degrees, over the next two years, and new Vermont legislation that restricts the sale of consumer products, including food packaging, that contain PFAS. Additionally, California used its well-known Prop 65 authority on PFAS three separate times in the span of a week earlier this year.
That’s all a long way of saying that the increased pressure around PFAS – which experts had been predicting would happen for years – is here. And critically for restaurants and other companies in the food supply chain, new science shows food packaging is a greater source of exposure than previously thought.
What food supply companies should do to prepare for PFAS
Restaurants and other businesses that package products that humans consume could soon face some tough choices. We don’t know exactly how PFAS will be regulated, and we might not know for a while. But we know that regulations are coming, and lawsuits are now being filed against not just companies that make PFAS but companies that use them in their products.
With that as a backdrop, here’s how affected business should prepare:
Stay abreast of developments
Given all the actors in play – state and federal legislators and regulators and those involved in lawsuits, etc. – keeping up to date on PFAS news isn’t easy. But it’s important. Consumer watchdog groups are closely watching PFAS and even “grading” companies on their PFAS-friendly activities. These same companies produce regular reports about restaurants’ use of the chemicals, which may sway many consumers decision on what food to consume, and where. While finding your company on such a list isn’t usually a good thing, knowing about it when it happens, or taking proactive steps to avoid a “failing grade,” makes it easier to respond.
Participate in industry standard-setting
Without clear regulations, companies can and probably should be part of trade association work to set voluntary standards, as the International Bottled Water Association has done regarding bottled water. (The organization notes that it set the standards not because bottled water containers contain PFAS but so consumers can remain confident about the safety of drinking bottled water when their tap water is contaminated with PFAS.) Engaging in these kinds of efforts and adhering to voluntary standards — even if they end up being lower than those in regulations down the line — can start companies on a smart path while limiting exposure.
Conduct a cost-benefit analysis
Companies in the food supply chain, especially larger ones, face at least one difficult question when determining whether to phase out food packaging with PFAS: Will the cost of discarding existing packaging – which might have been procured years in advance – and replacing it with non-PFAS options exceed damages from potential lawsuits? Given the uncertainty about where regulations will shake out and how other litigation could set precedents, this isn’t an easy calculus. But working with seasoned smart advisors can certainly help figure it out.
Look at alternatives
Of course, part of that analysis includes knowing what other packaging options will cost. Getting that information – and quickly establishing relationships with vendors who might be getting more and more calls in the coming months and years – is a good idea.
Have contingency plans in place
It’s a good idea to review relevant contracts from vendors and insurance policies related to the shifts with PFAS. It’s also smart to have plans in place to be ready for regulatory changes – or a bad publicity hit related to PFAS (like if your company shows up on a watchdog’s site).
Preparing for the changing tides of PFAS isn’t something that a hard-hit restaurant sector probably wants to deal with right now. But for industry leaders, getting their PFAS ducks in a row now will almost certainly make things more manageable – and maybe even easier – in the coming years.
Mara Cohara is Leader of the Environmental and Tort Practice Group and a member of the firm’s Executive Committee at Lathrop GPM LLP in Kansas City, MO. Mara focuses her practice on litigation matters involving toxic tort, nuisance, product liability, premises liability, breach of warranty and the defense of religious institutions. She has significant experience coordinating large-scale “bet the company” matters and defending high-profile lawsuits that involve media and community attention.
Her track record spans state and federal courts in more than 20 states and includes multiple outcomes favorable to her defendant clients in notoriously “plaintiff-friendly” venues. She advises clients in a wide variety of industries, including manufacturing, religious organizations, agribusiness and hospitality.
Allyson Cunningham, a partner at Lathrop GPM LLP in Kansas City, MO, focuses her practice on representing clients in administrative negotiations with federal and state agencies, and advises clients regarding their regulatory requirements and assists with litigation of environmental claims.
Matt Walker’s practice includes all areas of environmental law, including litigation, regulatory compliance, and assistance with corporate transactions. He utilizes his background working for environmental regulatory agencies to advise a wide range of clients on environmental matters under federal and state law, and in judicial and administrative forums.