Danielle QuistSenior Director, Regulatory Affairs and Counsel
What are PFAS? PFAS are a diverse class of about 5,000 chemical substances used for more than 60 years in household products, firefighting foams and industrial applications due to their heat, grease and water-resistant properties. Some PFAS have been used in food packaging approved by FDA. For the dairy industry, PFAS became a priority concern when high levels of these substances were found in groundwater and soil located in or around two individual dairies in New Mexico and Maine. The presence of PFAS on these farms—and the subsequent testing of the farmers’ milk which found PFAS above levels considered safe for human consumption—have not only devastated these farming operations and families but led to growing public concern about the presence of PFAS in the environment and food supply.
Many questions remain about the health effects of individual PFAS substances, what concentrations of these substances can cause harm to people and the environment, and who is responsible for contamination. Concern about PFAS has resulted in a proliferation of private, state and federal testing regimes to measure the presence of PFAS without binding federal standards or safety levels.
Providing safe and nutritious food products is the top priority of farmers, food companies and retailers alike. Clear federal guidance is needed to ensure the public, businesses, and our environment are safe and protected from undue or unintended harm.
PFAS continues to be a priority for EPA, FDA, the Department of Defense and other federal regulatory and research agencies. But for many Members of Congress and advocates, not enough is being done quickly enough. Congress continues to seek ways to pass legislative solutions to PFAS contamination without clear guidance from regulators.
IDFA, along with the National Milk Producers Federation (NMPF), American Farm Bureau Federation (AFBF), National Council of Farmer Cooperatives (NCFC), National Association of State Departments of Agriculture (NASDA), and several state agricultural trade associations asked Congress on November 18, 2019 to provide relief to farmers feeling the effects of PFAS contamination. (link to our letter)
Late last year, Congress agreed to provisions in the National Defense Authorization Act (NDAA) to provide funding for EPA and other regulatory agencies to conduct research and regulatory work related to PFAS. The NDAA also contained funding and authorities that may help bring relief to some dairy farms with high levels of PFAS concentration. The Department of Defense now has some authority under certain circumstances to provide uncontaminated water for agricultural purposes, establish remediation plans for land surrounding military installations, and purchase contaminated land adjacent to military installations.
The main question is whether Congress should direct EPA to establish binding drinking water standards when not enough is known about these substances to establish science-based standards. Additionally, what are the legal implications for farmers and food processors put into harm’s way by the actions of others, such as the military? While some in Congress want to direct EPA to list all PFAS (or only PFOA and PFOS) chemicals as hazardous substances under the nation’s Superfund laws, that’s a far-reaching policy with huge implications that requires a robust, science-based regulatory process to examine potential impacts.
In the November 18 letter, IDFA and its allies raised concerns about including a provision in the National Defense Authorization Act (NDAA) to list PFAS as a hazardous substance under the nation’s Superfund laws. While NDAA negotiators ultimately discarded the PFAS listing provision and it was not in the final NDAA, the provision resurfaced in legislation recently considered by the full U.S. House. On January 10, 2020, the House passed H.R. 535, known as the PFAS Action Act of 2019. Though it is unlikely the Republican-led Senate will take up this House bill, which most Republicans voted against in the House, it is legislation IDFA is tracking closely.
Not surprisingly, consumers and watchdogs have concerns about whether PFAS is in milk and, if so, are milk and dairy products safe. FDA’s Total Diet Study findings
(TDS Study) have not found PFAS contamination in dairy products at the retail level and no additional farms have faced similar contamination concerns. FDA testing to date shows that the large majority of foods tested lack detectable levels of PFAS, while those few foods with detectable levels are low enough that FDA’s safety assessments determined that the products were not likely to be a health concern at the detected levels.
The FDA’s TDS Study had initially reported detectable levels of PFAS in a single chocolate milk sample at the retail level, but that proved to be a false positive based on attributes of the chocolate and the testing methodology itself. As a result, no dairy products at the retail level have demonstrated detectable levels of PFAS. With no PFAS findings in dairy to date, FDA confirmed in 2019 that based on the Agency’s research thus far, dairy foods are safe and the system in place to ensure the safety and integrity of dairy foods is working as intended.
IDFA continues to request that FDA ensure all PFAS research and actions are transparent and science-based. Importantly, IDFA has strongly urged FDA to increase its transparency by including consumer-facing information to help consumers understand FDA’s work and conclusions regarding safety of dairy products and the food supply, which resulted in publication of common Questions and Answers
PFAS continues to be a regulatory, research and legislative priority at both the state and federal levels. Without Senate action on H.R. 535, we can expect the House PFAS Task Force to continue to attach PFAS provisions to various pieces of legislation.
IDFA will continue to work with other food, beverage and agricultural trade associations and to follow this issue closely.