Read the full article by Pat Rizzuto and Stephen Gardner (Bloomberg Law)

“European limits on the amounts of PFAS allowed in food are the first of several policies that analysts expect will affect US exports and the domestic food supply.

A regulation capping the amounts of four PFAS that can be in meat, poultry, fish, and eggs raised in or exported to Europe went into effect earlier this year.

That rule, along with more anticipated EU policies limiting per- and polyfluoroalkyl substances (PFAS), should trigger greater attention to the chemicals presence on US farms and in water, analysts told Bloomberg Law in interviews.

The limited monitoring of PFAS that US federal agencies have done suggests domestic exports of the four regulated food types largely will meet Europe’s limits. But the lack of data and PFAS hot spots that already have damaged farms mean some shipments could exceed Europe’s thresholds, the policy analysts said.

‘We’re in the calm before the storm,’ said Craig Simpson, a partner focused on food regulations at Keller and Heckman LLP.

A shipment’s exceedance could have a huge international impact on sales of US products, Simpson said.

If meat, for example, were rejected, a ‘domino effect will happen almost overnight,’ with US goods being banned by multiple countries, said Thomas Deeb, a food safety consultant and vice president at T&M Associates Inc.

‘We are aware of the regulation in the EU related to PFAS, and we’re currently looking into any potential trade implications,’ the American Farm Bureau said in a statement.

EU Enforcement

Governments often give regulated parties some time—barring major violations—to get accustomed to new requirements, according to Simpson and Dan Jones, a biochemistry professor at Michigan State University’s Center for PFAS Research.

So it may take time before a US shipment is stopped at a European border, or ‘it could happen tomorrow,’ Simpson said.

European authorities recognize their region’s PFAS contamination problems and want to identify ways to reduce high concentrations of the chemicals when found in agriculture, Jones said.

For US companies, the fear is that foreign governments can implement food regulations in protectionist ways, Jones said. That approach would give European producers more of a pass, while increasing attention on food exported to the region, he said.

‘There is no distinction between domestic and imported food. Both have to follow the same rules,’ said Harald Händel, a spokesman for Germany’s Federal Office of Consumer Protection and Food Safety.

Compliance with PFAS limits will be monitored by enforcement authorities, the EU Commission said in a statement. ‘Member states should target their controls towards products with a high risk of contamination.’

Cargill, Inc., Sysco Corp., and Trident Seafoods Corp., were among the major US food producers that didn’t reply to interview requests.

No US Standard

US companies wanting to avoid problems in Europe may test their foods and segregate products for the domestic market, which has no national PFAS restrictions, from exports headed towards Europe, Deeb said.

Past experience shows ‘the US becomes a destination of choice’ for imported products that cannot meet European requirements, he said. That means ‘American families and children are at higher risk of consuming PFAS,’ Deeb said.

But, without a federal standard, it’s hard to define that risk.

The European Food Safety Authority by contrast set in 2020 limits on the amount of four PFAS—perfluorooctane sulfonic acid (PFOS), perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA) and perfluorohexane sulfonic acid (PFHxS)—that the body could absorb weekly yet avoid increased risk of developmental harms or adverse serum cholesterol, liver, and immune system effects.

Those recommendations are the basis of the regulation of the four PFAS that’s in force in the European Economic Area, which consists of the 27 EU countries, Iceland, Liechtenstein, and Norway.

The regulated parts per billion (ppb) limits vary depending on the specific PFAS, type of food, and consumers’ age.

There’s insufficient data on PFAS levels in US food to be certain of how the EU rule would affect US exports, three scientists said.

‘Producers don’t want that to be public knowledge,’ Jones said. ‘And when we ask farmers we hear: “why would I want anyone to know this information.”‘

The US Department of Agriculture (USDA) didn’t describe how much testing it’s done, but said by email that its beef, pork, chicken, and farm-raised catfish surveillance has rarely detected PFAS.

The Food and Drug Administration (FDA) seldom found PFAS concentrations of concern in nearly 800 tests of various foods purchased at supermarkets, its website says. But, levels of PFOA in imported canned clams from China prompted Bumble Bee Foods LLC last year to voluntarily recall that product and take additional actions, the FDA said.

The federal data suggests many US exports can likely meet Europe’s ppb limits, said Tom Neltner, the Environmental Defense Fund’s senior director for safer chemicals, an initiative that includes chemicals in the food supply.

But having US limits or thresholds that trigger some kind of action would help protect US consumers, he said.

There’s a lot that’s not known generally, including about the impact of PFAS contamination hot spots, said Neltner and other analysts.

PFAS Hot Spots

The Pentagon has notified 3,911 farms of potential PFOA and PFOS contamination since March 2021, according to its July analysis first reported by Inside EPA.

Food raised near airports, petrochemical plants, and other facilities that have used PFAS-based fire suppressants also may have increased concentrations of the chemicals, said Mark McDaniel, a chemist with AlterEcho, a division of TechLaw Inc., which offers legal support and other services to companies and government agencies.

Some biosolids, which are wastes treated to remove known contaminants that traditionally did not include PFAS, have contaminated farms.

Water contamination is also a concern. At least 13 states have issued advisories recommending limited or no consumption of fish, according to state websites.

The concentration of one or more PFAS triggering the advisories varies from 3.9 ppb to 200 ppb, according Environmental Council of the States data from 11 states.

Those levels exceed some of Europe’s PFAS limits, which vary from 0.2 ppb to 8 ppb depending on the PFAS, type of fish, and whether the product would be consumed by infants and young children.

Europe was the US’ primary market for exported fish and seafood in 2022, according to US Department of Agriculture information. The market value was $1.12 billion.

State advisories are aimed at recreational fishers and individuals needing the food. But, streams, rivers, lakes, and oceans can be used for aquaculture farms, said Heather Walsh, a fish biologist working for the US Geological Survey.

The concentrations of PFOS, PFOA, PFNA, and PFHxS measured in 282 fish tissues sampled in 2018 and 2019 from US streams and rivers measured between 0.4 ppb and 131 ppb, according to Environmental Protection Agency information.

Some fish farms could have contaminated water flowing into them, Walsh said. The extent to which a fishery can reduce the PFAS depends on its location and other factors, she said.

US Awareness, Federal Action

The EU’s rules and potential impacts on US exports could boost corporate, state, and federal awareness of PFAS in the food supply, said Nancy McBrady, deputy commissioner for Maine’s Department of Agriculture, Conservation, and Forestry.

Maine began to examine PFAS’ impacts on farms in 2016 and has found the chemicals at 73 farms so far, she said.

‘It’s important to remember that farmers do not knowingly use PFAS chemicals, which are finding their way onto some farms just as is happening in other places and sectors,’ the American Farm Bureau said.

And PFAS don’t have to be the death of a farm, McBrady said. Farms can remain in business with help to address their particular PFAS problem, she said.

‘But it takes significant support and time,’ McBrady said. Maine’s legislature approved a $70 million relief package for state farms.

USDA programs could be used to help farmers get loans to deal with PFAS contamination and farm conservation support while PFAS is being addressed, McBrady said.

The Farm Bill, which is being reauthorized on Capitol Hill, and the bipartisan-backed Relief for Farmers Hit with PFAS Act (H.R.1517; S.747), are among the legislative tools Congress could use to help farmers, said Amy Fisher, president of the Maine Farmland Trust.

Future EU Rules

The European Commission recommended last year that member states monitor up to 29 PFAS in a variety of additional foods including fruits, vegetables, cereals, oilseeds, baby food, non-alcoholic drinks, wine, and beer.

The resulting data could be used to set PFAS limits on additional foods, the Commission said.

The European Chemicals Agency is evaluating a proposed REACH, or Registration, Evaluation, Authorization and Restriction of Chemicals, rule that would impose a broad ban on the production and use of PFAS in the EU, but be phased in for some products. The ban would affect food packaging, among other products.

The EU also is working towards legally binding PFAS limits in feed, said Simpson from Keller and Heckman.

Fishmeal and oil, for example, are ingredients in some animals’ feed. But PFAS in fishmeal caused excessive levels of the chemicals in eggs laid by organically raised chickens, according to an alert in January from the Technical University of Denmark’s National Food Institute.

The US exported about 20.7 million kilograms of fishmeal and fish oil to the European Union in 2022, according to National Oceanic and Atmospheric Administration (NOAA) data Bloomberg Law analyzed. That volume had a value of about $58 million, making the EU the country’s third largest market for those commodities.

PFAS contamination in fishmeal is difficult to address because the sources of the chemicals are so varied, Simpson said.

With pollutants ‘you usually have an identifiable polluter,’ he said. ‘It’s not a traditional situation.’”