Lawsuit Calls for FDA To Set PFAS Limits for Food

The FDA has yet to act on a petition to establish PFAS food limits, which was submitted in November 2023, despite a 180-day legal time limit to respond.

An Arizona environmental group is calling for federal regulations to limit the amount of per- and polyfluoroalkyl substances (PFAS) in American’s food, pointing out that the toxic “forever chemicals” pose a serious public health risk.

The Tucson Environmental Justice Task Force filed a complaint (PDF) in Arizona federal court on January 24, naming the U.S. Food and Drug Administration (FDA) as the defendant, as well as the outgoing commissioner, Robert M. Califf, since the agency has failed to act on a petition originally submitted in November 2023.

More than 9,000 man-made chemicals are currently classified as PFAS, which have been widely used in numerous products over the past few decades to help resist grease, oil and water.

While they are commonly found in non-stick pans, food packaging and other consumer products, the chemicals have also caused widespread water contamination in communities throughout the U.S., due to high levels of PFAS in aqueous film-forming foam (AFFF), which has been used by civilian and military firefighters to combat petroleum fires.

PFAS chemicals are known to persist in the environment and build up in the human body, which researchers have linked to an increasing number of serious health consequences in recent years, including kidney cancer, testicular cancer, ulcerative colitis and other serious diseases.

In its lawsuit against the FDA, the task force calls for the agency to set limits for certain PFAS substances detected in foods, including milk, lettuce, blueberries, fish and other products. It was filed after the agency failed to act on a petition calling for those limits dating back to November 2023, which the plaintiffs say the FDA has ignored to date.

They are asking the court to rule that the delay in addressing the petition has been unreasonable, and calls for the setting of a specific date by which the agency must answer the petition. The FDA is supposed to respond to such a petition within 180 days.

“FDA’s delay in acting on the Petition is arbitrary and capricious,” the lawsuit states. “Defendants’ unreasonable delay harms Plaintiffs, who already suffer from PFAS-related illnesses, and violates the (Federal Food, Drug, and Cosmetic) Act because adulterated foods remain in the market putting public health as well as global trade at risk.”

The Tucson Environmental Justice Task Force’s original petition calls for the FDA to adopt tolerances at the method detection limit of 26 to 30 different PFAS found in a variety of foods. They say these chemicals should have a nondetectable limit set for food products, which would be 0.05 parts per billion (ppb) based on 2023 PFAS detection technology.

PFAS Exposure Lawsuits

This latest complaint comes as chemical manufacturers like 3M Company, DuPont and BASF face thousands of PFAS water contamination lawsuits filed by water providers and individuals diagnosed with various types of cancer, as well as firefighter PFAS injury lawsuits brought by individuals who came into direct contact with the chemicals.

Given common questions of fact and law raised in PFAS injury and exposure lawsuits brought throughout the federal court system, the litigation has been consolidated under U.S. District Judge Richard M. Gergel in South Carolina, for coordinated pretrial proceedings as part of an MDL, or multidistrict litigation.

As part of the coordinated management of the litigation, a small group of early PFAS contamination lawsuits are being prepared for trial dates later this year, involving claims that individuals developed testicular cancer, kidney cancer, liver cancer, thyroid cancer, thyroid disease and ulcerative colitis, after drinking water known to be contaminated with high levels of the chemicals.

While the outcome of these early trial dates will not have any binding impact on other claims being pursued throughout the federal court system, they are designed to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.