Simultaneously, a fragmented and fast-moving patchwork of state laws and an expanding wave of consumer class actions and recall activity are converting PFAS from a niche environmental compliance issue into a mainstream commercial and litigation risk for entities manufacturing, packaging, importing, or selling food or beverage products.

This article summarizes the current regulatory and litigation landscape while identifying certain legal risks these companies (and the lawyers who advise them on procurement, packaging, and supply contracts) should continue monitoring.

Federal action

The FDA refuses to impose a formal ban on PFAS in food or food packaging, including declining a legal petition in June 2026 that requested the FDA set advisory thresholds on PFAS in certain foods, with a focus on seafood and milk. While FDA stated it is currently considering setting action levels, its actions to date have only included negotiated, voluntary phase-outs.

By way of example, in February 2024, the FDA announced that all grease-proofing agents containing PFAS that were previously authorized for use on paper and paperboard food packaging (e.g., fast-food wrappers, microwave popcorn bags, and similar grease-resistant packaging) would no longer be sold in the U.S. market, following a voluntary phase-out negotiated with the manufacturers holding relevant authorizations.

Because the FDA's most consequential actions to date have been voluntary, negotiated phase-outs and notice-based FCN terminations rather than formal rulemaking bans, the boundaries of "FDA-authorized" PFAS use are themselves shifting and, as discussed far below, offer a less reliable liability shield than companies may assume.

Federal legislation seeking to ban PFAS in food packaging has failed to gain momentum in recent years, but two bills were re-introduced in 2026 seeking to advance the issue. Congressional Democrats introduced the No Toxics in Food Packaging Act in June 2026, and the bipartisan Keep Food Containers Safe from PFAS Act) was introduced in July 2026. Both would ban the use of PFAS in food packaging, with the No Toxics in Food Packaging Act explicitly declining to preempt stricter state laws.

State action

In the absence of comprehensive federal action, states have moved aggressively (and inconsistently) to restrict PFAS. As of December 2025, 14 states have enacted laws targeting PFAS in items such as grease-resistant paper, fast-food wrappers, microwave popcorn bags and pizza boxes, with effective dates and scope varying widely – from Washington's February 2023 plant-based-only restriction through New Hampshire's January 2027 all-materials ban. That creates a significant compliance burden for companies selling nationally.

For example, California's AB 1200, effective January 1, 2023, prohibits the sale, distribution, or offering for sale of certain plant-based food packaging that contains intentionally added PFAS or more than 100 ppm of total organic fluorine.

Meanwhile, 2026 has brought a fresh wave of state activity, with Kansas, Missouri, Ohio, New Jersey, and Kentucky introducing bills that would extend PFAS restrictions beyond food packaging to cookware, cosmetics, cleaning products, and dental floss, impose new reporting requirements, and take effect on staggered timelines. That underscores how this patchwork of regulation will continue to expand, with inconsistent thresholds and deadlines across jurisdictions, unless and until a federal law is passed that preempts these state-level requirements.

Federal regulation of PFAS in water & other ingredients

PFAS content in water used as an ingredient in manufacturing food and beverages can also create thorny potential liability issues. To a lesser extent, PFAS in water used as a manufacturing processing aid and PFAS that may be present in other raw ingredients besides water (particularly fish and dairy ingredients) can also pose a contamination risk.

Because public water utilities in the U.S. are required to test for and begin disclosing regulated PFAS compounds in their annual Consumer Confidence Reports beginning in 2027, food and beverage manufacturers that are using public water without filtering for PFAS may have knowledge of potential PFAS contamination in their product beginning next year.

Although most state regulations focus on "intentionally added PFAS," which would target PFAS that is deliberately added and serves a functional purpose, knowledge of PFAS in a food or beverage ingredient presents a risk as PFAS laws tighten. If a manufacturer using PFAS-contaminated water had access to alternative sources of water, available filter technology, or other solutions that were not utilized, this risk could be greater.

Knowledge of potential consumer exposure to PFAS contamination in a product may also trigger state-level labeling and disclosure requirements, including California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65).

Consumer class actions

The consumer class action bar continues to move quickly to test PFAS theories against major food brands. In 2022, a series of putative class actions were filed in Illinois and California against two large quick-service restaurant companies, alleging certain food packaging contained unsafe levels of PFAS, relying in part on a Consumer Reports test of 100 food-container products revealing organic fluorine in numerous wrappers, bags, bowls, and plates.

A proposed class action against Driscoll's, reported in mid-July 2026, alleges consumer fraud and deceptive practices tied to PFAS in strawberries and their packaging. At least five recently filed PFAS consumer-fraud cases target fruit juices and beverages marketed as "all-natural" or "organic," alleging breach of express warranty, fraud, constructive fraud, and unjust enrichment based on PFAS levels allegedly exceeding EPA lifetime drinking-water health advisories.

Drawing on the developments above, food and beverage companies (and those that use PFAS-containing packaging, ingredients, or processing aids) face at least five distinct and overlapping categories of legal risk:

1. Regulatory and compliance risk: The fragmented, fast-moving patchwork of state effective dates and thresholds means that a packaging or ingredient specification compliant in one jurisdiction may be unlawful in another, and compliant today may be unlawful next year. Companies selling nationally or across borders face a continuously moving compliance target. This risk may be especially acute for companies using public water supplies.

2. Consumer class action and false advertising risk: Marketing language such as "safe," "natural," "pure" or "sustainable" is a direct target for PFAS-based consumer-fraud claims. The viability of such claims currently turns on pleading specificity and preemption arguments that remain unsettled.

3. Product recall and import/supply chain risk: PFAS contamination risk is not limited to domestic packaging and ingredient decisions – it extends to imported ingredients, packaging media, and processing inputs, particularly from overseas suppliers with less transparent PFAS testing and disclosure practices.

4. Indemnification and supplier-liability risk: Food companies may (and, defensively, should expect to) pursue recourse against packaging and chemical suppliers whose PFAS-containing inputs generate downstream liability – underscoring the importance of supply and procurement contract terms addressing PFAS representations, warranties, testing, and indemnification obligations.

5. Residual uncertainty of "FDA authorization" as a liability shield: FDA's most significant PFAS actions have been voluntary, negotiated phase-outs and FCN-termination notices rather than formal bans, and judicial outcomes on preemption and pleading adequacy remain mixed. So, companies should not assume that reliance on a still-technically-authorized PFAS use will reliably defeat a consumer-fraud claim or a regulatory enforcement action.

So what should food & beverage companies do?

* Map packaging, ingredient, and processing-aid specifications against the current state-by-state effective-date matrix, and build a process to track amendments as new state bills (e.g., the 2026 Kansas, Missouri, Ohio, New Jersey, and Kentucky bills) move toward enactment -- or work with an attorney who is tracking these issues.

* Audit marketing and labeling claims ("safe," "natural," "pure," "sustainable," "eco-friendly") against actual PFAS testing data before publication, given the consumer-fraud theories used against food retailers and manufacturers. When using industry-leading PFAS testing of ingredients and packaging, consider the opportunity for differentiation with consumers.

* Strengthen supplier due diligence and testing requirements for imported ingredients and packaging media, particularly from jurisdictions implicated in past PFAS-related recalls.

* Consider long-term water availability and quality issues that may require planning for backup sources of water and analysis as to whether those sources will require filtration. While especially urgent for water used as an ingredient, this exercise bears consideration for fish and dairy ingredients and ingredients sourced from farms with land-applied biosolids that may contain PFAS.

* Revisit procurement and supply agreements to include specific PFAS representations, warranties, testing/certification obligations, and indemnification provisions running from packaging and ingredient suppliers to the food company.

* Avoid over-reliance on current FDA authorization status alone as a compliance or litigation defense; monitor FDA's FCN status determinations and be prepared to transition away from PFAS-containing inputs even absent a formal rule change.

* Track the broader PFAS litigation and settlement environment (AFFF MDL, state attorney general actions, and manufacturer settlements) as a leading indicator of plaintiffs' counsel resources, theories, and appetite that will likely continue to migrate into the food and beverage sector.

A shareholder in Baker Donelson’s New Orleans office, Alexandra “Alex” Bruce Rychlak is a commercial litigator with a focus on contract and partnership disputes, as well as health and organic food safety. She can be reached at [email protected].

Elizabeth Haskins, a shareholder in Baker Donelson’s Charleston office, focuses her practice on environmental and energy litigation, regulation and compliance. She can be reached at [email protected].