“Upcoming EPA Deadline to Disclose PFAS Use Means Likely Surge in Litigation for Food Industry,” Food Safety Magazine
publication | February 11, 2025
In an article published by Food Safety Magazine, Hollingsworth LLP attorneys Matthew Malinowski, Gary Feldon, and Caroline Barker provide practical steps for the food industry to prepare for the potential surge in litigation related to the upcoming EPA deadline to disclose PFAS use. Reports to EPA by PFAS manufacturers and importers are likely to lead to a major increase in new consumer claims based on allegations that products are contaminated with per- and polyfluoroalkyl substances (PFAS), so-called “forever chemicals.”
Publicity concerning PFAS in food packaging over the past several years has led to increased litigation alleging PFAS contamination in foods. Rather than claim any health impact, the mass tort plaintiffs’ bar has filed proposed class action lawsuits alleging that manufacturers falsely marketed products by failing to disclose the presence of PFAS as an ingredient or contaminant. Such claims are likely to dramatically increase in the wake of the Environmental Protection Agency (EPA) requirement for manufacturers and importers of PFAS (and articles containing PFAS) to submit detailed reports on their use of PFAS by January 2026.
Given the history of PFAS consumer claims against the food industry, businesses should be especially proactive in addressing potential liability before companies’ mandatory reports on PFAS use become public. Manufacturers and importers of PFAS who must report to EPA should already be aware of their potential litigation exposure and prepare to address it. Food businesses that purchased products potentially containing PFAS from those manufacturers or importers, however, may be unaware of their potential liability until the reports become public.
Before EPA’s disclosure deadline, businesses in the food and beverage industry concerned about PFAS litigation for failure to disclose PFAS in a consumer product should begin formulating their responses. Some steps to consider include:
• Be conscious of potential litigation when preparing reports to EPA.
• Comply with other federal and state laws.
• Update insurance coverage.
• Identify alternative suppliers.
• Review supplier contracts.
• Review marketing and public statements.
• Retain litigation counsel early.