What's this about PFAS in plastic food containers?

A Houston-based company that reinforces plastic packaging for food and household goods is putting the public at risk of exposure to toxic “forever chemicals.” This is according to a new lawsuit brought by environmental and public health groups.

Public Employees for Environmental Responsibility (PEER) and Center for Environmental Health on Tuesday sued Inhance Technologies USA in the District of Columbia federal court, alleging violations of the Toxic Substances Control Act. The complaint came after the U.S. Environmental Protection Agency (EPA) filed a similar suit last week.

Inhance’s manufacture of perfluoroalkyl substances (PFAS) occurs during a process called fluorination. In fluorination, plastic packaging used for a range of purposes, from food containers to cleaning products, is treated with fluorine gas to reinforce the package, the suit claimed. The groups said tens of millions of plastic containers are fluorinated before being distributed in the U.S. They also said that Inhance is the sole U.S. provider of fluorination that occurs after plastic containers are moulded.

Inhance, a Houston-based company named as a defendant, produces tens of millions of consumer containers that contain PFAS, the consumer advocacy groups behind the lawsuit said. The plaintiffs asked a judge to order Inhance to follow Environmental Protection Agency (EPA) rules that require it to receive approval for its production process.

The groups also charge that regulators have known of the potential health threat since early 2021 but have failed to eliminate it.

What is the problem?

“It’s a grave concern for me that these containers are used for food, full stop,” said Kyla Bennett. She is a former EPA scientist who is now with Public Employees for Environmental Responsibility (PEER). PEER brought the suit with the Center for Environmental Health.

“[Regulators] have known about this for a while, and nobody has taken strong action to stop it, which is mind-boggling.”

Heather Whitehead is a researcher on a forthcoming University of Notre Dame study that found PFAS in plastic consumer products. She said testing found two PFAS compounds leached millions of times above the EPA advisory limits for drinking water. No legal limits have yet been set for food or some compounds found in containers. Having said that, some governments are moving to ban the entire PFAS class.

Products leach more PFAS as they remain in the container, Whitehead said. She added that it was impossible to tell which containers were contaminated by looking at them. However, sturdier containers were more likely to have PFAS than those that crumpled easily. Notre Dame has only tested HDPE containers and will next check those made of PET or polyethylene terephthalate.

What are PFAS?

PFAS are a class of about 12,000 compounds typically used to make products resist water, stains and heat. They are called “forever chemicals” because they do not naturally break down. They are linked to cancer, kidney disease, liver problems, immune disorders, congenital disabilities and other serious health problems.

Inhance treats plastic containers with fluorinated gas to create a barrier that helps keep products from degrading. The consumer groups say the process creates PFAS as a byproduct, including PFOA, one of the most dangerous of the class. EPA rules implemented in 2020 require companies manufacturing long-chain PFAS to submit for a safety review and approval.

The suit alleges that Inhance failed to do so and asks a judge to order the company “to cease and desist from all manufacture and processing of [long chain PFAS] during the fluorination of plastic containers”.

In a statement, the Inhance chief commercial officer, Patricia van Ee, said: “We have been, and continue to be, in full compliance with all relevant regulations.”

The company learned from the EPA of the “potential for certain PFAS to be unintentionally produced in very low concentrations.” They developed a method for reducing the chemicals to an undetectable level, Van Ee added.

The suit contradicts that claim. The EPA has found that virtually no level of exposure to PFOA is safe in drinking water.

What does the lawsuit claim?

The new lawsuit was filed under a provision in US law that allows citizens to bring suits against polluters allegedly violating rules and not being held accountable by regulatory agencies.

The law requires citizens first to file a “notice of intent to sue.” It is intended to give companies and regulators 60 days to address the problem. The notice was filed in late October. Inhance continues producing fluorinated bottles.

The EPA filed suit against Inhance on 21 December. The case was heavily redacted to conceal any mention of the company’s PFAS production because the agency cannot reveal confidential business practices. The redactions make it unclear if the EPA is asking the court to order Inhance to halt production immediately. The EPA did not comment.

Court filings show the EPA and Food and Drug Administration (FDA) knew of the contamination over the last two years but have failed to stop production.

Bennett raised the alarm about PFAS in pesticides in December 2020. Several months later, the EPA issued a report on the likelihood that plastic fluorination was contaminating industrial containers with PFAS.

The FDA wrote in a December letter to Public Employees for Environmental Responsibility there was no evidence food was being stored in containers produced by Inhance. Despite the remaining questions, the FDA is not testing plastic food packaging for PFAS.

“We don’t think the EPA or FDA has any idea how widespread this is or how much contamination this results in, and that’s a problem,” Bennett said. “Why is it being left to NGOs to do this?”

What is the EPA doing about PFAS?

The EPA has recently taken steps to regulate PFAS as a part of a strategic roadmap announced in October 2021. In June, it issued strict warnings that the chemicals are harmful in drinking water at extremely low levels. In August, it said it would propose designating specific variants of the chemicals as hazardous substances. This was to occur under the nation’s Superfund program to spark cleanup at contaminated sites across the country.

The EPA in January 2021 subpoenaed Inhance for information on its process. In July 2021, the Guardian reported on using PFAS in industrial containers containing ingredients for food, essential oils and other products. The FDA said it was waiting on the EPA for more information about whether PFAS could leach into food.

In March 2022, the EPA issued a violation notice ordering Inhance to “immediately cease” production if it had not yet eliminated the PFAS contamination. Inhance did not respond until September, stating it would submit its process for review while refusing to cease production. Still, the EPA did not file a lawsuit or alert the public.

The consumer groups behind the suit grew suspicious that contaminated bottles were being widely distributed. In July 2022, container testing began. Once the lawsuit was filed, the EPA filed its own suit 56 days later.

The agency had been “playing footsies” with Inhance instead of taking forceful action, said Bob Sussman, an attorney for the consumer groups.