By Sam Jockel and Ashley Yull of Alston & Bird
Despite the use of per- and polyfluoroalkyl substances (PFAS) in food packaging for decades, the presence of these substances has prompted attention and scrutiny from regulators, consumers and non-governmental organizations. Food packaging suppliers, food processors and retailers need to comply with state requirements and minimize potential risk of challenge in private litigation.
Federal regulation
The FDA has taken actions to revoke authorizations for the use of certain PFAS in food contact applications, although there are still regulatory clearances and food contact notifications (FCNs) that allow for such uses.
For example, in 2016, the FDA revoked clearances for using certain PFAS that contain eight or more carbon atoms in length (“long-chain” PFAS compounds) in food contact paper and paperboard applications based on newly available toxicity data concerning structurally similar substances.
More recently, in January 2025, the FDA determined that 35 FCNs, which had previously authorized the use of PFAS in grease-proofing coatings applied to paper and paperboard packaging, were no longer effective on the grounds that they were abandoned, following a voluntary market phase-out.
PFAS are still authorized for use in O-rings and gaskets used in food processing equipment as well as manufacturing aids added to other food contact polymers.
The FDA has also acknowledged that PFAS may be unintentionally present in food packaging as an impurity or contaminant. However, the agency has continued to maintain that testing of the general food supply has shown that very few samples have detectable PFAS and those that do generally have very low levels.
State regulation
Fourteen states now have passed legislation restricting or banning PFAS in food packaging: California, Colorado, Connecticut, Hawaii, Maine, Maryland, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington State. There is also proposed legislation currently pending in various states.
Importantly, the scope of this legislation varies from state to state:
* Composition -- While some state restrictions, like California’s and Washington State’s, encompass only the presence of PFAS in food packaging originally derived from paper, paperboard or materials derived from plant fibers, other states, like Vermont and Connecticut, have restrictions that encompass food packaging material more broadly without regard to its composition.
* Definitions of “food packaging” -- States also vary in how broadly they define “food packaging” as it relates to the bans or restrictions on PFAS. For example, some states, like New York, have limited the definition of “food packaging” to materials in direct contact with food or beverages, while the definition used in other states is arguably broader and could potentially encompass secondary or even tertiary packaging materials.
* Restrictions versus prohibitions -- Not all states are completely banning the presence of PFAS in food packaging. Some state laws focus only on intentionally added PFAS, while other states have focused on unintentionally present PFAS as well. For example, California bans persons from distributing, selling, or offering for sale in California any “food packaging” that either contains intentionally added PFAS or unintentionally added PFAS at or above 100 parts per million.
* Deadlines for compliance -- Compliance dates vary from state to state as well, with New York having the earliest compliance deadline of Dec. 31, 2022. Other states have bans or restrictions on PFAS in food packaging that are still not in effect, including the bans in New Hampshire and New Mexico, which do not go into effect until 2027.
It remains to be seen whether Congress or the White House will attempt to create a federal solution to this patchwork of state regulations.
Litigation landscape
In addition to increased regulatory attention, the food & beverage industry has seen a significant uptick in the number of litigation challenges targeting PFAS in food packaging—as well as the alleged presence of PFAS in food. In these suits, plaintiffs typically allege that the subject food or food packaging contains levels of PFAS that are toxic to humans.
Plaintiffs sue under state consumer protection statutes alleging that the defendants’ labeling and marketing practices, which convey that the food is safe for human consumption, amount to deceptive advertising given the alleged presence of PFAS. In light of the continued attention from the plaintiffs’ bar in food and beverage consumer class action litigation and mounting state restrictions on the use of PFAS in food packaging, we expect more lawsuits targeting alleged PFAS-containing food and food packaging ahead.
Best practices
Food & beverage companies and other entities should consider taking steps to avoid regulatory enforcement action and mitigate risk of challenge in private litigation associated with PFAS-containing food and food packaging:
- Review food packaging for its potential to be subject to various state laws restricting PFAS. This could include working with packaging suppliers to gain more visibility into the composition of food packaging and placing requirements on suppliers for the presence of PFAS.
- Work with counsel to monitor new developments and have an action plan to ensure compliance with state laws restricting PFAS.
- Review labeling claims in view of the evolving regulatory and litigation considerations related to the potential presence of PFAS.
Sam Jockel is a partner in Alston & Bird’s (www.alston.com) Litigation & Trial Practice Group and a member of the firm’s Food & Beverage Industry team, bringing an insider perspective to regulatory and compliance issues from his experience at both the FDA and USDA. Ashley Yull is a senior associate on the same team, concentrating her practice on complex food and beverage compliance and enforcement issues.
