EPA: Another Strike Against PFAS

Are you prepared to comply with more restrictions on chemicals of concern? A legal expert also has advice on what to say to consumers.

Kate Bertrand Connolly, Freelance Writer

July 9, 2024

6 Min Read
EPA PFAS in Water Regulations
Francesco Scatena / iStock via Getty Images Plus

At a Glance

  • EPA’s rule limiting PFAS in drinking water will affect food and beverage packagers.
  • Limits on PFAS exposure will influence brand owners’ packaging design and materials choices.

Regulatory response to the widespread use of per- and polyfluoroalkyl substances (PFAS) in industry continues to unfold, with the US Environmental Protection Agency (EPA) clamping down on levels of the chemicals in drinking water

The agency’s recently finalized PFAS/drinking water regulation affects not only public water systems but also manufacturers of packaging and the companies that use their products.

These forever chemicals, as they’re known as, provide the water and grease resistance required in many food packaging applications. The substances have also been used widely in products such as nonstick cookware, stain-resistant furniture and carpeting, and fire-fighting foam. Industrial use of PFAS dates to the 1940s.

In recent years, however, knowledge of PFAS’ health and environmental risks has spread, sparking state and federal regulations that curb use of, and exposure to, the chemicals.

Health risks include cancers and liver and heart problems in adults and immune and developmental issues for babies and children. The chemicals’ environmental threat relates to the lengthy time it takes PFAS compounds to break down, which leads to long-lived pollution.

The EPA rule limiting PFAS in drinking water, announced earlier this year, establishes legally enforceable levels for several PFAS that have been found in drinking water.

Related:Unpacking PFAS Food Packaging Regulations in the US

The regulation puts limits on five individual PFAS compounds:

• Perfluorooctanoic acid (PFOA).
• Perfluorooctane sulfonic acid (PFOS).
• Perfluorohexane sulfonate (PFHxS)
• Perfluorononanoic acid (PFNA).
• Hexafluoropropylene oxide dimer acid (HFPO-DA).

It also establishes a limit for mixtures of PFHxS, PFNA, HFPO-DA, and perfluorobutane sulfonate (PFBS).

In this exclusive interview, George Misko, partner at law firm Keller and Heckman, discusses the EPA’s regulation on PFAS in drinking water and what it means to packaging manufacturers and the brand owners they serve.

What are the most important points of these changes in how the EPA is handling PFAS?

Misko: The final National Primary Drinking Water Regulations (NPDWR) announced by EPA on April 10, 2024, established the first federal drinking water standards for specific PFAS compounds. Prior to this, EPA had issued only guidance in the form of Health Advisory Levels. The final rule sets enforceable drinking water Maximum Contaminant Levels (MCLs) of 4 parts per trillion (ppt) for PFOA and PFOS and 10 ppt for PFHxS, PFNA, and HFPO-DA (commonly known as GenX Chemicals). The rule also establishes limits for mixtures of at least two or more of PFNA, PFHxS, PFBS, and HFPO-DA.

Related:PFAS-free Oxygen Absorbers Meet New Packaging Regulations

The direct impact of the new standards falls on public water systems, which will have three years to complete initial monitoring for the listed compounds and then will have an additional two years to reduce the amount of regulated PFAS in their drinking water if levels exceed the MCLs.

They may do this by incorporating new treatment technologies, identifying and stopping any ongoing source of PFAS contamination, or modifying the location from which they withdraw source water. Utilities must also inform the public concerning the amount of regulated PFAS in their drinking water. Many states have already established drinking water standards for some or all of these contaminants. Some of these states may need to adjust their standards if they are less stringent than the federal ones.

Why is the agency taking these steps now?

Misko: PFAS have a variety of useful applications and have been used or incorporated into a range of products for decades. However, they are also slow to degrade and some have been found to bioaccumulate as well. Some have also been linked to suspected health concerns.

EPA first established drinking water Health Advisory Levels for certain PFAS in 2016. In 2020, it made a preliminary determination to regulate certain PFAS in drinking water under the Safe Drinking Water Act and commenced a multi-year rulemaking process to establish appropriate, health-protective levels.

Related:A Brief History of PFAS Bans in Food Packaging

Setting drinking water levels for certain PFAS represents one aspect of EPA’s overall PFAS management strategy. That strategy is built around three goals: (1) Restricting PFAS from entering the environment; (2) Remediating — or cleaning up — PFAS contamination where it is found; and (3) Researching PFAS to identify and address public health and environmental risks. EPA is using all of its legal authorities to identify and mitigate PFAS risks where they exist.

How might these changes affect packaging manufacturers?

Misko: In addition to the direct effects on drinking water providers, the MCLs will have a ripple effect through other forms of environmental regulation. Water systems that discover PFAS intake can be expected to investigate and seek to stop ongoing sources of PFAS contamination to source waters. Company discharge permits for wastewater may be changed to prohibit discharges of PFAS at levels that may impact drinking water. Likewise, soil or groundwater contamination clean-up efforts may see modification of standards to assure PFAS residues do not directly or indirectly cause exceedances of the MCLs.

EPA also is investigating the extent to which air emissions from industrial facilities may contain PFAS that may come to be located in soil or water that may affect drinking water sources. This may lead to future regulation. It may also lead to future liability claims associated with environmental releases.

In addition to EPA’s goal of restricting PFAS from entering the environment, other federal agencies as well as state governments have taken steps to reduce or eliminate the use of PFAS in packaging materials.

For example, FDA just announced earlier this year that three manufacturers of PFAS products used in paper applications voluntarily phased out sales of certain short-chain PFAS, and a fourth manufacturer stopped selling such products altogether in 2019. Numerous states have also enacted laws restricting the sell and use of PFAS in consumer products.

 

How might these changes affect brand owners who use packaging?

Misko: In light of the plethora of federal and state activities to phase out the use of PFAS in packaging, brand owners are working closely with their suppliers to identify alternatives to PFAS and qualify them for their products that require grease or water resistance, nonstick surfaces, or other advantages provided by the use of PFAS compounds.

What should next steps be for manufacturers of packaging and for brand owners?

Misko: From the environmental side, manufacturers and users of PFAS need to be aware of any PFAS discharges, emissions, or other environmental releases associated with their facilities and wastes and evaluate whether action is warranted.

From the product marketing side, manufacturers of packaging and brand owners need to be aware of the specifics of each of the various state laws restricting and/or banning PFAS. For example, they need to know when each of the laws becomes effective, how PFAS are defined, what exemptions are available in these laws, and what reporting requirements are imposed.

Packaging manufacturers and brand owners need to be preparing for compliance with these restrictions now.

Presumably, with the flood of news around this topic, many consumers are learning about PFAS for the first time. What, if any, messaging should brand owners be conveying to their customers about PFAS at this point?

Misko: Brand owner communications to customers on issues of potential environmental or health concerns should be based on:

Transparency — be upfront;

Education — inform consumers on whether or not concerns are warranted; and

Reassurance — inform consumers what actions are being taken to ensure that products do not present environmental or health concerns.

From a legal standpoint, it is most important that communications are truthful, clear, and substantiated. It is also important to stay informed about the latest research and regulations regarding PFAS, as this is a rapidly evolving issue on the science and the law, which may require regular updating of consumer communications to stay current.

About the Author(s)

Kate Bertrand Connolly

Freelance Writer

Kate Bertrand Connolly has been covering innovations, trends, and technologies in packaging, branding, and business since 1981.

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