FDA must set limits on PFAS in food, lawsuit says

US regulators are failing to address concerns about toxic PFAS chemicals in foods despite having the scientific tools to do so, according to a lawsuit filed by an environmental group in Tucson, Arizona.

The lawsuit, filed on Jan. 24 in the US District Court of Arizona, follows the submission of a legal petition filed in November 2023 by the Tucson Environmental Justice Task Force that asked the Food and Drug Administration (FDA) to establish limits for certain per- and polyfluoroalkyl substances (PFAS) the agency has found in blueberries, lettuce, milk, salmon and other foods. The group wants the FDA to take action to remove products from grocery store shelves if PFAS residues are found at the minimum level of detection.

“We’re asking [the FDA] to do something that they are required to do under the law, that they failed to do under the law,” said Sandra Daussin, attorney for the plaintiffs and a plaintiff herself who worked for over 25 years as a regulatory chemist for agricultural products and environmental protection.

Under its own regulations, the FDA is required to respond to petitions within 180 days, but the agency failed to address the petition after more than a year, an “arbitrary and capricious” delay, the complaint alleges.

PFAS are a class of thousands of chemicals used for decades across many industries. The chemicals have become ubiquitous in the environment, found in water, soil and the blood of animals and people around the globe. Many types of PFAS have been found to be health hazards, linked to disease and disability. The petition cites connections between seven types of PFAS and “serious life-threatening health effects,” including kidney and liver damage, cancer, neurotoxicity, immunotoxicity, and adverse reproductive effects.

The petitioners argue that in August 2023 the FDA developed a validated method for detecting up to 30 PFAS chemicals in foods, and thus has an obligation to use that knowledge to set enforceable limits. The group wants the FDA to adjust those limits to be lower if methodology improves to detect smaller concentrations.

The FDA has been testing foods for PFAS contamination since 2019 but so far says it has found very little contamination.

Mark Moorman, director of FDA’s Office of Food Safety, acknowledged the petition in an April 2024 letter, but said that the FDA had not yet reached a decision “due to competing agency priorities” and that the petition was “currently under active evaluation by our staff.”

“They just ignored us,” Daussin said. She said she believes the agency does not want to set limits “because they know they’re going to find PFAS in food and that’s going to cause a problem.”

Plaintiff Linda Shosie of the Tucson Environmental Justice Task Force alleges in the complaint that many of her friends and family members have suffered severe illnesses and even died as a result of exposure to toxic chemicals, including PFAS.

Plaintiff Arno Krotzky alleges he suffers from kidney and immune system problems linked to PFAS exposure.

When asked for comment on the lawsuit, the FDA said that the US Department of Health and Human Services has issued a short pause on mass communications “that are not directly related to emergencies or critical to preserving health” under the new Trump administration.

The lawsuit comes after the US Environmental Protection Agency last week withdrew a draft rule that proposed setting limits on PFAS in industrial discharge following an executive order from the new Trump administration that put a freeze on new federal regulations pending review. PFAS discharged into waterways can contaminate drinking water and soil where crops are grown.

Last year, the EPA finalized the first legally enforceable limits for six PFAS chemicals in drinking water while last February the FDA announced it is eliminating the sale of food packaging that contains PFAS.

FDA testing of food for PFAS is ongoing, but as of last April the agency had tested almost 1,300 food samples for PFAS, according to the FDA’s website. In a set of 92 samples collected from one region, the agency reported finding PFAS in six samples, including beef, shrimp and fish.

In an April 2024 update, the agency said that exposure to PFAS at the levels it measured in these samples “is not likely to be a health concern for young children or the general population, based on evaluation of each PFAS for which there is a toxicological reference value,” adding that no PFAS have been detected in 97% of foods tested through the study to date.

Independent analyses have raised concerns that PFAS could be more prevalent in the food supply than the FDA’s data suggests.

In 2023, the organization Alliance for Natural Health USA tested eight kale samples purchased from grocery stores in New York, Georgia, Pennsylvania and Arizona, finding PFAS in all but one sample.

“Our testing directly contradicts the FDA’s complacent attitude when it comes to PFAS contamination of our food supply, leaving serious questions about the agency’s assessment of the safety of our food,” said the group in a statement.

In 2024, the nonprofit Consumer Reports tested 50 samples of whole milk from five states known to have PFAS contamination in their groundwater, finding two particularly harmful PFAS chemicals, PFOS and PFOA, in six samples.

“The results of our limited spot check don’t (and can’t) show that our food supply is dangerously contaminated or that all milk contains the toxic chemicals,” Consumer Reports said in a statement. “But the results also raised some red flags. The levels of those two PFAS were higher than previously found in limited sampling by the FDA, and high enough that in the European Union, they would have triggered investigations.”

As the new Trump administration begins, it’s “anybody’s guess” whether or not the FDA will fulfill the petition’s request to set limits on PFAS in foods, said Daussin.

“In reality, this aligns quite well with this idea of ‘let’s make America healthy again,” she said, referring to the agenda of Robert F. Kennedy Jr., Trump’s nominee for Secretary of Health and Human Services who testified at two senate confirmation hearings this week.

“If we’re just talking about law, it doesn’t matter what administration they’re under.”

(Featured image by Scott Warman on Unsplash.)