GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2024

Status

Accepted

Abstract

Per- and polyfluoroalkyl substances (“PFAS”) are devastating our food systems and our health. Recent studies link even small exposure to PFAS to a host of adverse health outcomes, including cancer, autoimmune diseases, thyroid disease, liver damage, childhood obesity, infertility, and birth defects.

Food consumption is a primary route of PFAS exposure. PFAS are omnipresent at dangerous levels in our marine and agricultural environments, including in water, soil, fertilizers, compost, and air. From there, they can find their way into virtually every plant, fish, animal, and animal product, and ultimately (in the greatest concentration) into the consumer. In addition, PFAS-laden food processing equipment, disposable dishes, and containers leach dangerous levels of these chemicals into processed food products, further infusing our every meal with PFAS. It is no surprise then that everything from chocolate cake and microwave popcorn to free range eggs, wild caught fish, organic milk, and organic kale can harbor staggering quantities of these toxic substances.

Despite this widespread presence and strong scientific evidence of PFAS’s harmful impact on humans, federal regulation of PFAS in food is currently nonexistent. At least fifteen agencies have a mandate to ensure the safety of our food supply in one form or another. More is not always better. In the case of regulatory agencies, it can lead to fragmented demand for attention, diffusion of responsibility, and bureaucratic bystander apathy. This story has played out time and again with other toxic contaminants like polychlorinated biphenyls (“PCBs”) and pesticides. Despite our country’s devastating experience with past contaminants and the unprecedented scientific progress of our time, however, the federal response to new food safety threats has only become more sluggish and inadequate.

This article lays a pathway for change, taking the issue of PFAS food contamination as a case study for the broader dysfunction in the food safety regulatory system. Part I reviews the history of federal food regulation and explores the role that each federal actor in the field plays in ensuring the safety of the food supply. It analyzes the agencies’ jurisdictional limits, institutional constraints, and funding challenges, revealing a divided and dysfunctional bureaucracy that has failed consumers repeatedly. Part II provides background on the chemical and toxicological profile of PFAS and their widespread presence in the environment in general and food supply in particular. It also surveys the current state of PFAS regulation in the United States and the additional regulatory challenges posed by these substances. Part III examines possible approaches to more effective regulation of environmental contaminants in food and proposes a readily available but currently overlooked mechanism for combatting the current public health crisis of PFAS in food. Lastly, Part IV catalogues the expected benefits of the solution and addresses anticipated skepticism. It concludes that the approach proposed in this article is likely to withstand both legal and policy challenges and can effectively protect consumers from PFAS in food today, while simultaneously garnering much needed data to usher in a more permanent solution in the future.

GW Paper Series

2024-19

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