Read the full article by The National Law Review

“On November 18, 2021, the Keep Food Containers Safe from PFAS Act (“Act”) was introduced in the Senate and House, which proposes a PFAS ban for food packaging in the United States. The bill, while incredibly brief, would accelerate efforts already underway by the food packaging industry to develop feasible substitutes for PFAS in its products. Food packaging companies, though, should not assume that a ban on PFAS in food packaging or a voluntary phase out of PFAS will result in protection from future lawsuits.

PFAS Ban In Food Packaging Proposal

The body of the bill introduced in the House and Senate a few days ago reads: ‘To amend the Federal Food, Drug, and Cosmetic Act to prohibit the introduction or delivery for introduction into interstate commerce of food packaging containing intentionally added PFAS, and for other purposes.’ On its face, the bill is simple in its intent, although the ‘intentionally added’ language may cause unforeseen issues.

As with many state bills that have passed legislation seeking to ban PFAS from various products, the lack of a definition in the Act for ‘intentionally added PFAS’ opens the door to future debate about what constitutes ‘intentionally added PFAS’ and how intent can be proven if a company were to claim that the presence of PFAS were due to unintentional acts on its part. Further, ‘intentionally added’ by who? The U.S.-based manufacturer of the food packaging only? What is the company sources materials from oversees, PFAS is not disclosed to the American company, and the company produces a product and sells it in the United States? Intentionally added PFAS, or no? Dozens, if not hundreds, or machinations of this same hypothetical could easily be developed, but the Act itself provides no clear answer. In the short term, if the Act were to pass, this may lead to company uncertainty and confusion over compliance.  In the long term, it could result in legal challenges to the law.

PFAS Ban Does Not Equal Shield From Lawsuits

Companies may assume that if a PFAS ban in its product type were to pass, the PFAS would naturally not be utilized any further and the company would not have to be concerned about future PFAS litigation. This is a grossly over-simplified view that ignores two very likely future PFAS litigation trends – CERCLA cleanups of landfills and products liability lawsuits.”…