This week the U.S. Food and Drug Administration (FDA) confirmed it had conducted a study finding that certain types of per- and poly-fluoroalkyl substances (PFAS) have entered American food and drinking water supplies; however, “[c]urrent FDA testing has found that most foods have no or very low levels of PFAS.” The FDA’s efforts are ongoing and the FDA launched a new website to summarize its efforts concerning PFAS.

PFAS are a group of chemicals, widely used in commercial and industrial applications for their heat resistance and ability to repel oil and water, that may pose health risks to humans. The health effects (if any), exposure levels and duration of exposure are the subjects of numerous on-going state, federal and independent studies. The EPA has pledged to establish a “maximum contaminant level” (MCL) for two of the most common PFAS chemicals—PFOA and PFOS—but environmental groups, public health advocates and certain states have argued that the federal environmental agency is moving too slowly and have urged Congress and state legislatures to set statutory and regulatory limits for the chemicals. Others argue additional data and human health studies are necessary before establishing a federal MCL.

The news of FDA action first broke after environmental groups obtained FDA presentation slides concerning a study analyzing samples of produce, meat, dairy, and grain products in the Mid-Atlantic region; a significant number of samples contained no detectable concentrations of PFAS. Of the 91 samples collected in 2017, and analyzed in 2019, the FDA represented that 14 samples had detectable levels of PFAS, but the samples were not likely to be a human health concern. According to the FDA, “while PFAS in food occurs primarily through environmental contamination, contamination in areas where food is grown does not necessarily mean the food itself will contain detectable PFAS.”

Samples are currently being taken from a dairy farm, and so far, all samples had detectable levels of PFAS, which prompted the FDA to advise the farm to discard the milk. The FDA is preparing data tables for the dairy samples to post to the new website. Prior sampling of produce, cranberries, seafood, and raw milk taken from 2012 to 2018 showed either no detection of PFAS or that the detectable levels were not likely to be a human health concern. The studies can be reviewed here.

As we have previously reported, certain states (like New Jersey) have already set standards for PFAS, and multiple bills are currently wending their way through Congress. Senate and House committees held hearings in May to consider 20 bills (14 in the House Subcommittee on Environment and Climate Change, 6 in the full Senate Environment and Public Works Committee). The bills with the best shot at passage are those with bipartisan support. They include bills to establish federal enforceable drinking water standards (Maximum Contaminant Levels) for total PFAS (S. 1473 and H.R. 2377), and bills requiring EPA to list PFAS as CERCLA/Clean Water Act hazardous substances (S. 638 and H.R. 535). Other measures would require EPA:

• to list PFAS as toxic chemicals, making them subject to the Emergency Planning and Community Right to Know Act’s Toxics Release Inventory (TRI) reporting program (H.R. 2577);
• to list PFAS as hazardous air pollutants under the Clean Air Act (H.R. 2605);
• to require EPA to regulate PFAS comprehensively under Section 6 of the Toxic Substances Control Act (H.R. 2600).

At the Environment and Public Works Committee hearing on May 22, Chairman John Barrasso identified PFAS as a priority for the Committee in this Congress, but expressed caution about the breadth of some legislative proposals, and the potentially broad new liabilities they could create. He also expressed opposition to bills that would take away or limit EPA’s ability to assess risks and develop standards based on the Agency’s substantive expertise. Congress’ actions so far suggest a high level of interest, on both sides of the Capitol and on both sides of the aisle, but also point to legislation that is likely to grant EPA authority and set ambitious deadlines, rather than interfering with or overruling EPA’s regulatory processes.